author: GRAVES, J.

text:
    ORCUTT, Appellant, v. CENTURY BUILDING COMPANY et al.
    Division One,
    February 22, 1907.
    1. ELEVATORS: Carriers. A person or corporation operating an eleyator to transport persons or property from one floor to another of a building, is as much a carrier as is a person or corporation operating a railroad or stage coach. . The law governing railroads and other carriers applies with equal force to the operator of an elevator.
    2. -: On Freight Car: Passenger or Licensee?- The evidence shows that there were six passenger elevators in the building and one freight elevator, and that passengers generally used the passenger elevators, and all the workmen, like plaintiff, engaged in the transportation of freight for a tenant of the building, rode on the freight elevator. Held, that plaintiff was a passenger, and not a licensee, and defendants owed him the care due a passenger on a common carrier under like circumstances; that is, the same degree of care due a passenger on a railroad freight train, the passenger in such case assuming the usual and ordinary inconveniences and the additional hazards incident to the mode of conveyance. He can, therefore, complain of the negligent operation of the elevator, or of the defective machinery and appliances used in operating it.
    3. INJURY TO PASSENGER: Negligence: Cause of Injury. The relation of passenger and carrier having been established, it is not incumbent upon plaintiff to show the cause of the accident, where general negligence is pleaded. It is sufficient to show the accident and the attendant circumstances and conditions; that done, negligence on defendants part will be presumed, and the burden then shifts to defendant to show that there was no negligence in the construction or operation of the elevator.
    4. -: -: -: Special Causes Pleaded. Where the passenger alleges general negligence, the burden is on defendant to show the cause of the accident. This burden is placed on defendant because the carrier is in a position to know of defects in the machinery and the other facts which caused the injury, while the passenger is not. But if the passenger in his petition alleges specific acts of negligence as the cause of the accident, he is presumed to know of them as well as defendant, and having charged them he must prove them or fail to recover.
    5. -: Instruction: Care. Where the relation of passenger and carrier exists, the law requires the highest degree of care, and it is error to refuse an instruction for plaintiff requiring that care. Whether the passenger is upon a passenger train or elevator, or upon a freight train or elevator, he is entitled to that high degree of care; and that is true, although plaintiff may by the specific allegations of his petition have assumed the burden of proving the specific causes of the accident.
    6. ———: Harmless Error. Where examination of the evidence reveals a case in which the verdict might have been for plaintiff had the court given an instruction which indicated the proper care due him, the judgment will not be affirmed on the insistence that the verdict is for the right party and should be affirmed notwithstanding the error.
    7. ELEVATORS: Negligence: Liability of Trustee and Agent. A trust company was made trustee under a deed of trust given to secure the bonds issued by the company that owned the building, and by written instrument attorney in fact irrevocable to rent the building, collect the rents, and pay taxes, ground rent, interest on bonds, insurance and all expenses connected with the maintenance, repairs and management of the building; it was not only given control over the purse-strings, but full management and control of the building, and employed the caretakers, including the elevator operators, and paid them. Held, that it is liable for personal injuries to a third person (a passenger on the freight elevator) caused by the negligent operation of the elevator, or by defective elevator machinery.
    8. -: -: -: Misfeasance. Where an agent undertakes to do for a principal a particular work, and has actually entered upon the performance of that work, and in doing it fails to respect the rights of third parties, by doing some wrong, . whether of omission or commission, as where he fails or neglects to use reasonable care and diligence in the performance of that work, he is guilty of misfeasance, and will be personally responsible to such third person who is injured by reason of such misfeasance.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Reversed and remanded.

      John A. Gilliam and Luther Ely Smith for appellant.
    (1) Both, parties defendant were liable if there was any negligence. Carterville v. Cook, 129 111. 152; McGregor v. Reid, 178 111. 471; Griffin v. Manice, 166 N. Y. 197; Beidler v. Branshaw, 200 111. 425, 102 111. App. 187; Wright v. Wilcox, 19 Wend. (N. Y.) 343; Harriman v. Stowe, 57 Mo. 99; Lottman v. Barnett, 62 Mo. 169; Bell v. Josselyn, 3 Gray 309; Martin v. Benoist, 20 Mo. App. 270'. Under some circumstances the omission of an act which one ought to do may amount to a positive misfeasance. Ellis v. McNaughton, 76 Mich. 237; Baird v. Shipman, 132 111. 16; Campbell v. Sugar Co., 62 Me. 566; Mechem, Agency, sec. 572. The evidence showed that defendants had not complied with the ordinance in regard to inspection, and tended to show a woeful lack of proper inspection. Wendler v. House Furn. Co., 165 Mo. 527; Sluder v. Railroad, 88 S. W. 648; Schlereth. v. Railroad, 96 Mo. 516; Hartford Deposit Co. v. Sollitt, 172 111. 222; Springer v. Ford, 189 HI. 430; Goodsell v. Taylor, 41 Minn. 207; Ray, Neg. Pass. Carriers, secs. 96-97-98-99'. And the trust company having entered upon the performance of running this building and making repairs at its discretion, was liable for misfeasance in not doing the duties imposed by law. Kenney v. Lane (Tex. Civ. App.), 36 S. W. 1063; Osborne v. Morgan, 130 Mass. 102. Whether defendant made proper inspection is for the jury. Tate-man v. Railroad, 96 Mo. App. 454; Coontz v. Railroad, 121 Mo. 658; Siela v. Railroad, 82 Mo. 430; Nicholds v. Plate Glass Co., 126 Mo. 658; Dedrick v. Railroad, 21. Mo. App. 436; Bartley v. Trorlicht, 49 Mo. App. 227; Gutridge v. Railroad, 105 Mo. 529. Freight elevator highest practicable care: Beidler v. Branshaw, 102 111. App. 187, 200 111. 425. Passenger elevator: Bldg. Co. v. Nelson, 197 HI. 334; Becker v. Lincoln R. E. Bldg. Co., 73 S. W. 581. Freight train: Erwin v. Railroad, 94 Mo. App. 296; McGee v. Railroad, 92 Mo. 208; Wagner v. Railroad, 97 Mo. 512; Whitehead v. Railroad, 99 Mo. 263; Guffey v. Railroad, 53 Mo. App. 462; Wait v. Railroad, 65 S. W. 1028; Hardin v. Railroad, 77 S. W. 431; Railroad v. Jordan, 76 S. W. 145. Cafe commensurate with the danger: Railroad v. Fort, 80 S. W. 434. Violation of ordinance prima facie negligence: Giles v. Diamond State Iron Co., 7 Houst. 453. Failure to comply with ordinance negligence per se: Wendler v. People’s H. F. Co., 165 Mo. 527; Holden v. Railroad, 108 Mo. App. 665, 84 S. W. 133; Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Murry v. Railroad, 101 Mo. .236; Brannock v. Elmore, 144 Mo. 55; Shearman & Redfield on Neg., sec. 13. Statutory duty burden on defendant: Ditch Co. v. Zimmerman, 4 Colo. App. 78; Sewell v. Moore, 166 Pa. 570; Canal & M. Co. v. Dowell, 17 Colo. 376; Willy v. Mulledy, 78 N. T. 310; McRickard v. Flint, 114 N. Y. 228. Highest degree of care required in the construction, repairs and operation of an elevator. Becker v. Trust Co., 174 Mo. 246, 73 S. W. 581; Lee v. Publishers, Knapp So Co., 155 Mo. 634; Mitchell v. Marker, 62 Fed. 140; Deposit Co. v. Sollitt, 172 111. 222; Springer v. Ford, 189' 111. 430; Oberndorfer v. Pabst, 100 Wis. 513; Treadwell v. Whittier, 80 Cal. 574; Hotel Co. v. Camp, 97 Ky. 424; Levy v. Campbell, 19 S. W. 440; Goodsell v. Taylor, 41 Minn. 207; Oberfelder v. Doran, 26 Neb. 118; Bank v. Morgolofski, 75 Md. 432; Ellis v. Waldron, 19' R. I. 369'; 10 Am. and Eng. Ency. Law (2 Ed.), 946 to 950; Hodges v. Percival, 132 111. 53; Riland v. Hirshler, 7 Pa. 384; Bldg. Assn. v. Lawson, 97 Tenn. 397; Ray on Imposed Obligations, secs. 96 to 101. Fall of elevator from breakage of machinery raises a presumption of negligence. Treadwell v. Whittier, 80 Cal. 574; Goodsell v. Tayloy, 41 Minn. 207; Griffin v. Manice, 166 N. Y. 197; Deposit Co. v. Sollitt, 172 111. 222; Springer v. Ford, 189 111. 430; 10 Am. and Eng. Ency. Law (2 Ed.), 946 to 949; McGregor v. Reid, 178 111. 471; Ray on Imposed Obligations, Personal, secs. 96 to 101; Minster v. Railroad, 53 Mo. App. 276; Miller v. Railroad, 5 Mo-. App. 480; Hill v. Scott, 38 Mo. App. 374; Yerkes v. Packet Co., 7 Mo. App. 265; Sharp v. Railroad, 114 Mo. 104; Cambrón v. Railroad, 165' Mo. 543. Carriers, whether by contract or general invitation, owe the same duties. 10 Am. and Eng. Ency. Law (2 Ed.), 946, note 3. Violation of ordinance when pleaded and proven is negligence per se. The court cannot take such evidence from the jury. Hirst v. Ringen R. E. Co., 169 Mo-. 194; Wendler v. People’s H. F. Co., 165 Mo. 541; Goss v. Railroad, 57 Mo: App. 574; Weber v. Railroad, 45 Mo. App. 123; Weber v. Railroad, 1001 Mo. 194; Bowman v. Railroad, 85 Mo. 333 ; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Huckshold v. Railroad, 90 Mo. 548; Weller v. Railroad, 120 Mo. 635. Same degree of care required of the operator of a freight train or a freight elevator as of a passenger train or passenger elevator. McGee v. Railroad, 92 Mo. 208; Railroad v. Horst, 93 IT. S. 297; Springer v. Ford, 189 111. 450; Ellis v. Waldron, 19 R. I. 369; O. & M. R. W. Co. v. Dickson, 59 Ind. 321; Wait v. Railroad, 165 Mo. 621; Railroad v. Mahling, 30 111. 9; Dunn v. Railroad, 58 Me. 197; Penna. Co. v. Newmeyer, 129 Ind. 404; Dodge v. Steamship Co., 148 Mass. 218; Olds v. Railroad, 172 Mass. 77. (2) Instruction 4 given is extremely vicious. One vice of this instruction is that it excluded question of negligence or unskillfulness in the operation of the elevator; a second, that it requires only ordinary care; a third, that it requires the plaintiff to prove exactly what caused the elevator to fall. It needs no argument to show the error in this instruction, which covered the whole case, in excluding negligence or unskillfulness in operation. The doctrine of ordinary care therein stated was incorrect, and opposed to all the cases hereinbefore cited. Holding the plaintiff to prove exactly what caused the accident is opposed to the proper rule in every case of negligence where the jury have a right to draw a fair inference from the facts proven, or where more than one act of negligence is charged and -more than one thing may contribute to the injury. Burger v. Railroad, 112 Mo. 245. Even if the jury do not all agree as to the exact cause of the injury, yet if they concur that there was negligence on the part of defendant, they should find for the plaintiff. Holden v. Railroad, 108 Mo. App. 665, 84 S. W. 133; Wacher v. Railroad, 108 Mo-. App. 645. Where several proximate causes contribute to an accident, and each is an efficient cause without which the accident would not have happened, it may be attributed to all or any of these causes. Ring v. City of Cohoes, 77 F. Y. 83. Where it is impossible to show by direct evidence and with absolute certainty from what cause the occurrence proceeded, something was necessarily left to inference, not a merely speculative but a rational inference based upon all the circumstances of the case. Matteson v. Railroad, 35 N. Y. 490; Duerst v. St. Louis Stamp. Co., 163 Mo. 622’. Instruction 5', as given, also says: ‘ ‘ The court instructs the jury that the mere fact that the elevator in question fell on the occasion in question creates no presumption that said fall was due to any negligence on the part of said defendants.” That is opposed to the entire doctrine of res ipsa loquitur, and specifically in the teeth of too many cases to justify their citation, but some are: Railroad v. McIntyre (Tes..Civ. App.), 82 S. W. 346; Newcomb v. Railroad, 169’ Mo'. 424; Tread-well v. Whittier, 80 Cal. 574; Goodsell v. Taylor, 41 Minn. 207; Griffin v. Manice, 166 N. Y. 197; Deposit Co. v. Sollitt, 172 111. 222; Springer v. Ford, 189 111. 430; 10 Am. and Eng. Ency. Law (2 Ed.), 946 to 949; McGregor v. Reid, 178 111. 471; Ray on Imp. O'blig. Personal, secs. 96 to 101; Minister v. Railroad, 53 Mov App. 276; Miller v. Railroad, 5 Mo. App. 480; Hill v. Scott, 38 Mo. App. 374; Yerkes v. Packet Co., 7 Mo. App. 265; Sharp v. Railroad, 114 Mo. 104; Cambrón v. Railroad, 165 Mo. 558. The fall of an elevator affords prima facie evidence of negligence. Gerlach v. Edelmeyer, 15 Jones, and S. 292; Mullen v. St. John, 57 N. Y. 567; Thompson on Neg., sec. 1082; Kenney v. Railroad, 80 Mo. 576; Dowell v. Guthrie, 99 Mo. 664; Schepers v. Railroad, 126 Mo. 671; M'oberly v. Railroad, 98 Mo. 186; Rapp v. Railroad, 106 Mo. 428; Myers v. City of Kansas, 108 Mo. 487. Burden of disproving negligence on carrier. Allen v. Railroad, 183 Mo. 433; Blanton v. Dold, 109 Mo. 64; Redmon v. Railroad, 185 Mo. 1; Mooney v. Lumber Co., 154 Mass. 407; Lee v. Railroad (Mo.), 87 S. W. 23; Kelly v. Railroad, 87 S. W. 583; Posey v. Scoville, 10 Fed. 140; Smith v. Railroad, 18 Fed. 304; Griffin v. Railroad, 148 Mass. 143. Falling of a building, burden on defendant: Giles v. Diamond State Iron Co., 7 Houst. (Del.) 453; Mullen v. St. John, 57 N. Y. 567. Res

      ipsa loquitur-. Hill v. Scott, 38 Mo. App. 374; Scott v. London & St. Oath. Dock Co., 3 Hnrl. & C. 601; Czech v. Gen. Steam Nav. Co., L. R. 3 C. P. 18; Trans. Co. v. Downer, 11 Wall. 134; Och v. Railroad, 130 Mo. 52; Kaples v. Orth, 61 Wis. 531; Minster v. Railroad, 53 Mo. App. 276; Cummings v. Furnace Co., 60 Wis. 603; Mulcaim’s Admn. v. Janesville, 67 Wis. 24; Carroll v. Railroad, 99 Wis. 99; Inland & Seaboard Coasting Co', v. Tolson-, 139 U. S. 551; Judson v. Powder Co., 107 Cal. 549, 29 L. R. A. 708. (3) Liability of agent: Ayles v. Railroad, 88 S. W. 1050; Clark & Skyles on Agency, secs. 594, 595; Lysley v. Clarke, 14 Eng. Law & Eq. 510; Perkins v. Smith, 1 Wils. 328; Mayer v. Bldg. Co., 104 Ala. 611; Brownell v. Fisher, 37 Cal. 130; Miller v. Staples, 3 Colo. App. 93; Bennett v. Ives, 301 Conn. 329'; Reed v. Peterson, 91 111. 288; Peck v. Cooper, 112 111. 192; Johnson v. Barber, 10 111. 425; Baird v. Shipman, 132 111. 16; Berghoff v. McDonald, 87 Ind. 549; McNaughton v. Elkhart, 85 Ind. 384; Blue v. Briggs, 12 Ind. App. 105; Poole v. Adkisson, 1 Dana (Ky.) 110; Campbell v. Hillman, 15 B. Mon. (Ky.) 508; Martin v. Railroad, 95 Ky. 612; Delaney v. Rocherau, 34 La. Ann. 1123; Richardson v. Kimball, 28 Me. 463; Campbell v. Portland Sugar Go., 62 Me. 562; Hedden v. Griffin, 136 Mass. 229; Osborne v. Morgan, 130 Mass. 102; Weber v. Weber, 47 Mich 569; Josselyn v. McAllister, 22 Mich. 300; Starkweather v. Benjamin, 32 Mich. 306; Ellis v. McNaughton, 76 Mich. 237; Buis v. Cook, 60 Mo. 391; Harriman v. Stowe, 57 Mo. 95; Martin v. Benoist, 20 Mo. App. 262; Lottman v. Barnett, 62 Mo. 159; Horner v. Lawrence, 37 N. J. L. 46; Jenne v. Sutton, 43 N. J. Law 257; Crane v. Onderdonk, 67 Barb. (N. Y.) 47; Murray v. Usher, 117 N. Y. 542; Suydam v. Moore, 8 Barb. (N. Y.) 358; Yan Antwerp' v. Linton, 89 Hun (N. Y.) 417, affirmed in 157 N. Y. 716; Erwin v. Davenport, 9 Heisk. (Tenn.) 44; Drake v. Hagan, 108 Tenn. 265; Baker v. Wasson, 53 Tex. 150; Green-berg v. Whitcomb Lumber Co., 90 Wis. 225. “In other cases, however, it is held that an agent who has the complete control and management of premises, and who is bound to keep them in repair, is liable to a third person for injuries resulting to the latter while using the premises in an ordinary and appropriate manner, through the negligence of such agent to keep the premises in proper repair.” Clark & Skyles, Agency (1 Ed.), sec. 596, p. 1302; Baird v. Shipman, 132 111. 16; Mayer v. Thompson-Hutchinson Bldg. Co., 104 Ala. 611; Campbell v. Portland Sugar Co., 62 Mo. 566; Ellis v. MeNaughton,- 76 Mich. 237; Lough v. John Davis & Co., 30 Wash. 204.

      Seddon & Holland and Collins $ Chappell for respondents.
    (1) The judgment should be affirmed because it is for the right party, (a) Appellant was not a passenger on the freight elevator in question, but was on same as a mere licensee for his own convenience. Respondent, therefore, owed m> duty in reference to the construction or condition of the said elevator. 0 ’Brien v. Western Steel Co., 100 Mo. 182; Amerine v. Porteous, 105 Mich. 347; Bellows v. Moores, 162 Mass. 42; Reardin v. Thompson, 149 Mass. 267; McGee v. Compton, 66 111. 327; Stevens v. Nichols, 155 Mass. 472; Converse v. Walker, 30 Hun 596; Benson v. Railroad, 177 Md. 535; Strucker v. Vansteclder, 132 N. T. 499; Heinlein v. Railroad, 147 Mass. 136; Metcalf v. Cunard S. S, Co., 147 Mass. 66; Evansville v. Griffin, 100 Ind. 221; Sievers v. Peters Box & Lumber Co., 151 Ind. 642; Parker v. Portland Pub. Co., 69 Me. 173; Faris v. Ho-burg, 134 Ind. 269; Pierce v. Whitcomb, 48 Vt. 127. (b) The rule of res ipsa loquitur has no' application in a case of this kind, and appellant utterly failed to prove that the fall of the elevator was due to any negligence on the part of the respondent. Feary v. Railroad, 162 Mo. 75; Epperson v. Tel. Co., 155 Mo. 346; Oglesby v. Railroad, 76 S. W. 629; Warner v. Railroad, 178 Mo. 125. (2) Even had appellant heen on the freight elevator by invitation, the degree of care owed by the respondent would not have been the highest degree of care, but ordinary care. Hall v. Murdock, 72 Md. 178; Sievers v. Peters Box & Lumber Co., 151 Ind. 642; Bur-gen v. Stowe, 96 S. W. 29. (3) The court did not err in refusing to give instruction 3 asked by respondent. There was no evidence in the case of any failure on the part of the respondent to inspect the elevator in question, or that any defect could have been discovered upon inspection. . It is erroneous to give an instruction where there is no evidence upon which to base it. Stone v. Hunt, 114 Mo. 66; State v. Hook, 102 Mo. 110; Evans v. Interstate Co., 156' Mo. 50;' State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245. (4) Even had appellant been on the freight elevator in question upon invitation of respondent, the latter would have owed him only the duty of exercising ordinary care to see that the elevator was in a reasonably safe condition. Authorities under point 2. (5) The court did not err in giving instruction 4 at the instance of respondent. It devolved upon appellant to prove what caused the elevator to fall. Feary v. Railroad, 162 Mo. 72; Epperson v. Tel. Co., 155 Mo. 346; Oglesby v. Railroad, 76 S. W. 629; Warner v. Railroad, 178 Mo1. 125. (6) The court did not err in giving instruction 5 at the instance of respondent. The burden of proving that the elevator fell on account of negligence on the part of the respondent was upon appellant. Feary v. Railroad, 162 Mo. 72; Epperson v. Tel. Co., 155 Mo. 346.

      Collins é Chappell for respondent Mississippi Valley Trust Company.
    An agent is never liable to third persons for injuries resulting from a non-performance of the agent’s duties to his principal. Hence, the Mississippi Valley Trust can, under no circumstances, be liable as agent for an injury sustained by a person injured in an elevator owned and operated by the Century Building Company. Luckel v. Century Building Co., 177 Mo. 626; 0'’Neil v. Young, 58 Mo. App. 628; Steinhauser v. Spraul, 127' Mo. 541; Kelley v. Railroad, 122 Fed. 286; Harriman v. Stowe, 57 Mo. 93; Stone v. Cartwright, 6 Durnford & East 411.
   GRAVES, J.

By suit instituted in the circuit court of the city of St. Louis, the plaintiff sought to recover of defendants, for personal injuries, medical attendance, medicines, medical appliances and nursing, the sum of $50,000. In a trial before a jury, verdict was for the defendants, and plaintiff appealed.

The petition, which is lengthy, in substance charges: That the defendant Century Building Company, a corporation, built and owns the Century Building, a large office building in the city of St. Louis; that the defendant Mississippi Valley Trust Company, a corporation, is and was the trustee in two certain deeds of trust on said building given to secure bonds of said Century Building Company in the aggregate of $750,-000; that said Mississippi Valley Trust Company, by a certain written instrument, of date December 18, 1896, was made attorney in fact irrevocable to rent said Century Building and to collect rents, pay taxes, pay ground rent, pay the interest on said bonds, and to pay all expenses connected with the maintenance, repair and management of said building, as well as the insurance thereon, and was to retain three and one-half per cent of all moneys collected, in payment of its services in this behalf; that the terms of renting and the amount to be expended upon repairs, maintenance and management, were by said contract left to the discretion of said Mississippi Valley Trust Company; that after the date of said contract and to the date of the injury to the plaintiff, said Mississippi Valley Trust Company exercised all the powers given it by said contract as to- said building; that by reason of the premises the said Trust Company became and was jointly liable, with the Century Building Company, for plaintiff’s damages.

The petition then further charges that defendants in conducting said building as an office building, used a large freight. elevator to haul up and down- the freight, property and effects of their tenants, and permitted and invited persons to attend to said property and to ride up and down upon said elevator in so doing, and had constantly carried attendants with freight, and had extended a general invitation to> persons in charge of freight to ride upon said elevator; that on May 30,1902, this plaintiff was engaged in moving the effects of the St. Louis & San Francisco Railroad Company, from the Century Building to another place; that the plaintiff was aware of the general custom of defendants to permit attendants of freight to ride in said freight elevator and had knowledge of the general invitation which defendants extended to attendants of freight and accepted said invitation and on said date was rightfully on said elevator, and that it thereby became the duty of defendants to- use due care to carry plaintiff in said elevator safely. The negligence charged as to said elevator and its operation may be summarized as follows: 1. Negligently and carelessly constructed. 2. Negligently and carelessly allowed to .be and remain out of repair. 3. Negligently exposed to injuries from foreign bodies. 4. Negligently operated. 5-. Negligently failed to inspect said elevator and its machinery. 6. Negligently failed to have in their employ skilled and competent operators. 7. Negligently failed to have same inspected by city inspectors as required by city ordinances.

Specifically the petition says:

“And on the morning of May 30,1902, while plaintiff was under invitation from defendants rightfully and lawfully upon said elevator in charge of said property of said railroad company, the operator of said car negligently conducted the car thus loaded from the seventh floor up to the eighth floor of said building and then and there suddenly, violently and negligently reversed said car, subjecting the operating machinery and the pinion of the engine and the gearing, and the cables and winding-drum, and pillow blocks, caps, bolts and screws to great and extraordinary strain, and said elevator, by reason of said negligent and violent reversing of said car by said operator, and the negligent and improper construction of said elevator, and by reason of the negligence of the defendants in failing to provide suitable machinery for raising and lowering the same, and failing to keep said machinery and appliances in good repair and failing to provide against the exposure of said machinery to breakage and injury from outside substances, and the negligence and incompetence- of defendants’ servants in managing same, and the failure of defendants to have said elevator and machinery properly inspected, protected and managed, gave way, said pinion, winding-drum and gearing, rack, pillow blocks, caps, bolts and screws broke, and said cables broke and said winding-drum and shafting jumped from its position and said elevator fell and said counter weights smashed and the pieces fell down the shaft and upon the car below, and on the load and on plaintiff, and the said elevator fell from about the seventh floor to the basement of said 'building, and the so-called safety devices by reason of defendants’ negligence aforesaid, failed to work properly, and said dogs did not grip the guides and stop the car, and said operator of said elevator negligently, carelessly and thoughtlessly did not reverse said car when he found the same was getting beyond his control, but increased the speed of said ear by pulling the cable by which the direction of the car was regulated up or down, in a manner to make it go down instead of up.”

Then follows a description of plaintiff’s injuries, which are and were very serious in character, together with the allegation of his earning capacity being $125 per month, the loss of time in sum of $575, and the permanent impairment of earning capacity.

Each defendant answered by way of general denial. Errors in the admission and exclusion of testimony, and the giving, refusing and modification of instructions are assigned, which will be noticed in the course of the opinion.

I. The first question which should be determined is the relationship of plaintiff to these defendants or either of them. That is to say, we should first determine whether the plaintiff was a passenger or a mere licensee, for the obvious reason that the determination of this question, will assist to determine many other questions involved in this record. Plaintiff contends that he occupied the relation of passenger, while defendants say he was a mere licensee. The evidence shows that there were six passenger elevators and one freight elevator in the building; that passengers generally used the passenger elevators, and all the workmen with plaintiff upon this occasion used the ' passenger elevators. There is much evidence to the effect that for at least three or four years prior to this accident, plaintiff and others in charge of freight were permitted to and did ride in this freight elevator. And to the further effect that it was the custom of persons handling freight to go up and down this elevator. Does this make plaintiff a passenger? In the running of passenger elevators it has been held in well-considered eases that the relation of passenger and carrier exists. [Goldsmith v. Holland Bldg. Co., 182 Mo. 597; Becker v. Lincoln Real Estate & Bldg. Co., 174 Mo. 246; Luckel v. Century Bldg. Co., 177 Mo. 608; Lee v. Knapp & Co., 155 Mo. 610; Hartford Deposit Co. v. Sollitt, 172 Ill. 222; Fox v. Philadelphia, 208 Pa. St. 127; Treadwell v. Whittier, 80 Cal. 574.]

It lias likewise been held that this relation exists even as to freight elevators, under given circumstances. [Springer v. Ford, 189 Ill. 430; Beidler v. Branshaw, 200 Ill. 425.]

In our judgment the doctrine announced in these cases is the correct .one. A person or corporation running an elevator to transport persons or property from one floor of a building to another, is just as much a carrier as a person or corporation running a railroad or stage coach. These cases hold, and rightfully, that the law governing railroads and other carriers applies with equal force to the operator of an elevator.

From the evidence it reasonably appears that for some years this freight elevator had been used by persons accompanying the freight. There can be no difference in this case and the case of a stockman accompanying his stock riding in the caboose of a freight train. He is none the less a passenger. Like a railroad company, the defendants here owed to plaintiff a duty, which is well defined in cases of passengers on freight trains. In the case of Beidler v. Branshaw, supra, a case of injury upon a freight elevator, Justice Hand said:

“The law is well settled in this State that persons operating elevators in buildings for the purpose of carrying persons from one story to another are common carriers of persons, and are required to exercise the highest degree of care and diligence in and about the operation of such elevators to prevent injury to passengers being carried thereon, and that the rules governing the liability of persons owning and operating passenger elevators in buildings apply to persons operating freight elevators when a person is rightfully upon such elevator as a passenger, and that while, from the necessary construction of a freight elevator, there cannot, in the nature of things, be the same immunity from peril upon a freight elevator as upon a passenger elevator, still the same degree of care must he exercised in the operation of each class of elevators to protect persons from injury who are thereon as passengers.”

To the same effect is Springer v. Ford, 189 Ill. 430, in which the court says:

“The contention, on behalf of defendant, that the principles above announced have no .application to a person owning and operating a freight elevator, is not tenable when a passenger is lawfully and rightfully upon such elevator. Such passenger, by reason of the construction of that class of elevators, is subject to great risk and many hazards. The liability, however, of the owner or manager thereof as a common carrier is measured by the same rules, and he is held to the same degree of diligence, as that of persons owning and operating passenger elevators. ’ ’

Along the same lines is the case of McGee v. Railroad, 92 Mo. l. c. 217, where Norton, C. J., said:

“In the case before us there was abundant evidence showing that passengers were habitually carried upon defendant’s freight trains. Plaintiff having been received by defendant as a passenger on its freight train, the same degree of care was due to him that defendant owed to passengers on its regular passenger trains, except that plaintiff, in taking the freight train, accepted and traveled on it, acquiescing in the usual incidents and conduct of a freight train, managed by prudent and competent men. [Railroad v. Horst, 93 U. S. 291.]”

In Wait v. Railroad, 165 Mo. l. c. 621, Brace, P. J., says:

“It seems now to be well-settled law here, as elsewhere, that where a railroad company carries passengers for hire on its freight trains ‘it must exercise the same degree of care as is required in the operation of its regular passenger trains, the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode .of conveyance.’ ”

And the whole subject is fully reviewed in the recent case of Hedrick v. Railroad, by Gantt, J., 195 Mo. l. c. 116, et seq.

From the eases both here and elsewhere it appears that in taking passage upon a freight train, or a freight elevator, the passenger assumes the usual hazards attending that mode of conveyance, but not those arising from the negligence of the company, which are not usual and incident to the mode of conveyance. If the freight train was ditched by defective track and' this resulted in the failure to safely transport the passenger, the company would be liable. So, too, if the accident was the result of defective machinery or inefficient conduct of the servants operating the train. In other words, the same degree of care as to the passenger is required as if he were on a passenger train, save and except the passenger assumes the usual and ordinary inconveniences and the additional hazards incident to the mode of conveyance. So with a passenger in a freight elevator. Such passenger cannot complain of the usual inconveniences incident to such a conveyance, nor can he complain of the hazards usually incident to that mode of conveyance. He can, however, complain of the negligent operation of the elevator, or of the defective machinery and appliances used in the operation thereof, and in such eases, the doctrine res ipsa loquitur applies, as is usual in cases-of passenger and carrier. Having determined the relationship of the parties and the law to govern, we dismiss this proposition and proceed to the next.

II. The trial court gave to the jury for the defendants an instruction No. 4, as follows:

“4. The court instructs the jury that the plaintiff is not entitled to recover in this case merely because the elevator in question fell and he was injured as a re-suit of said fall, but in order to recover the plaintiff must first satisfy the jury, by a preponderance of the evidence, as to what caused the elevator to fall. In other words, in order to recover, the cause of the fall of the elevator must not be left to mere conjecture, but the jury must be able to determine from the evidence exactly what caused the elevator to fall. If the jury from the evidence are able to determine exactly what caused the elevator to fall, then it further devolves upon the plaintiff to prove, by a preponderance of the evidence, that the cause was a defect or insufficiency in some part of the elevator or machinery, which was known to the defendants or by the exercise of ordinary care might have been known to the defendants. If the jury find from the evidence that the fall of the elevator was due to some cause which the defendants could not have' discovered by the exercise of ordinary care, then and in that case your verdict must be for the defendants.”

This instruction, as well as others given for the defendant, and others refused for the plaintiff, show that the court proceeded upon the theory that the doctrine res ipsa loquitur did not apply in this case, and in this there was error, unless by reason of the pleadings the plaintiff had placed himself in another position, which question we will discuss presently. Defendants by this instruction placed upon the plaintiff the burden of showing the cause of the accident, whereas in such cases it is sufficient to show the accident and the attendant circumstances and conditions, when negligence will be presumed, and thereupon the burden is shifted to defendant to show that there was no negligence in the operation and construction of the elevator. [Magoffin v. Railroad, 102 Mo. 540; Furnish v. Railroad, 102 Mo. 438; Clark v. Railroad, 127 Mo. 197; Wilkerson v. Railroad, 26 Mo. App. l. c. 152; Smiley v. Railroad, 160 Mo. l. c. 636; Och v. Railroad, 130 Mo. l. c. 52; Chouquette v. Railroad, 80 Mo. App. 520; Logan v. Railroad, 183 Mo. l. c. 605; Allen v. Railroad, 183 Mo. l. c. 434; Estes v. Railroad, 110 Mo. App. l. c. 730.]

Such, however, does not seem to have been the theory of the trial court as indicated by this record. It is not necessary to quote more fully from the instructions. The instruction says, “but in order to recover, the plaintiff must first satisfy the jury, by a preponderance of the evidence, as to what caused the elevator to fall. ’ ’ This is diametrically opposed to all cases of a wrecked train where the relation of passenger and carrier exists, where it is usual to show the fact of a wreck, and then require the defendant to show that it was not the result of negligence upon its part. The instruction was error unless the rule should be changed by reason of the pleadings, and to this question we now proceed.

III. The petition in this case charges, in our judgment, specific acts of negligence. We have quoted the last paragraph of the petition, but in the first part of the petition is found a number of separate and distinct clauses alleging in detail the several specific acts of negligence relied upon. The paragraph quoted is rather a resume of the specific acts of negligence first pleaded. Defendants contend, and we think rightfully, that having pleaded specific acts of negligence, the plaintiff was required to prove them and could not rely upon the rule of law announced in the foregoing proposition. Where general negligence is pleaded there can be no doubt of the application of the rule stated in our paragraph two. But the courts draw a distinction between cases wherein general allegations of negligence are found and those wherein are found specific allegations of negligence. We refer now more particularly to cases wherein the relation of passenger and carrier exists. The rule which shifts the burden of proof in such cases is founded on the theory that the ■ railway company is in a position to know the facts and to show the facts, whilst the passenger is not in such position. But if the plaintiff by his petition alleges the exact specific acts of negligence, it is evidence that he also knows the facts, and so knowing them there is no reason for invoking the rule of presumptive negligence. The general rule in cases other than the class above referred to, is that the plaintiff must establish his case by the preponderance of evidence, and in that class of cases the presumption of negligence is only indulged, in our judgment, for the reason aforesaid. However, if the plaintiff possesses knowledge of the facts, and is able to plead them specifically and in detail the reason for the rule disappears and with it the rule itself.

Our courts have held that where specific acts of negligence are pleaded it devolves upon the plaintiff to prove the acts of negligence pleaded, and that if he recover at all it must be upon the specific acts of negligence pleaded and not otherwise. [Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Bartley v. Railroad, 148 Mo. 124; Feary v. Railroad, 162 Mo. 75; Hamilton v. Railroad, 114 Mo. App. l. c. 509; McGrath v. Railroad, 197 Mo. l. c. 105.]

In Hamilton v. Railroad, 114 Mo. App. l. c. 508, the rule is thus stated:

“A common carrier, though not an insurer of the safety of its passengers, is held to the exercise of the highest degree of care in protecting them from injury. The right of action, however, that accrues to the passenger injured while being served by the carrier, is founded in negligence, but from the character of the relation a presumption of negligence arises from the fact of injury that throws the burden upon the carrier to establish upon its part the exercise of the degree of care required. Under this rule it is unnecessary for the plaintiff, in such case, to specify in his petition the negligent acts that produced his injury. It is sufficient for him to charge, in general terms, that he w'as injured while being carried as a passenger, as a result of the negligence of the carrier. But when the plaintiff chooses to allege in his petition the specific acts of negligence of which he complains, he assumes the burden of proving them, and as in other oases must recover, if at all, upon tbe negligence pleaded.”

In the McGrath case, supra, whilst it was not a case of carrier and passenger and we suggested for that reason that the presumption of negligence could not be indulged and the doctrine of res ipsa loquitur did not apply, after a thorough examination of the authorities above cited, we said: “In such cases where the plaintiff chooses in the petition to allege specific acts of negligence, the rule of law places the burden of proving such specific negligence upon the plaintiff, and a recovery, if had at all, must be upon the specific negligence pleaded.”

This we think announces the Missouri doctrine. So that it would appear that the trial court was authorized, under the peculiar pleadings in this case, to give the said instructions heretofore adverted to in paragraph two. If the petition had charged the relationship of passenger and carrier and a failure to safely carry, with charges of general negligence instead of detailed specific charges of negligence, the instruction numbered 4, and other instructions above mentioned, would have been wrong, but. they are not under this pleading unless we are to overturn a long list of cases in this State, and eases which we think well founded in principle.

IY. Plaintiff asked and the court refused an instruction upon the measure of care required of defendants in the operation of their elevator, in language, as follows:

“6. The expression ‘due care’ used in these instructions is defined to be care commensurate with the instrument or means being used, and danger to be appretended, and while .the plaintiff in entering a freight elevator in the Century Building, to be carried up and down the building in it, accepted and acquiesced in the usual incidents and conduct of a freight elevator, yet the party or parties in control of said Century Building was or were bound to exercise, in the repair, guarding from accident, and management of said freight elevator that high degree of care which prudent and competent men exercise under like circumstances, and the failure by the party or parties in control of said Century Building to use that high degree of care which is exercised by prudent and competent men under like circumstances, would be a failure to exercise due care.”

The refusal of this instruction was error. It matters not where the burden of proof was under the pleadings as heretofore discussed, the measure of care Was the same. Whenever the relation of passenger and carrier exists the law requires the highest degree of care. This is true, whether the passenger is upon a passenger train or elevator or upon a freight train or elevator. The rule is firmly fixed by the freight train cases which we have cited and further discussion is unnecessary. The trial court evidently proceeded upon the theory that the plaintiff, at most, was not more than a mere licensee. This is the argument of defendants here and was no doubt their position in the lower court. For this error the cause must be reversed and upon retrial of the cause upon the proper theory, many other questions urged here can be readily eliminated. This instruction number 6 is as favorable to the defendant upon the theory of passenger and carrier, as could have been asked.

Y. Respondent insists that notwithstanding there be error, yet the verdict is for the right party and should be sustained. To say the least, with a retrial upon the right theory of the case, as in this opinion indicated, an examination of the evidence reveals a case upon the facts upon which a jury should pass. The verdict might have been different in this trial had they been properly instructed upon the degree of care required of defendants in the operation of this elevator. A jury impressed with the idea that defendants owed no special duty as to the exercise of care toward plaintiff might reach a very different verdict from one impressed with the law to the effect, as said by Brace, P. J., in the "Wait case, supra: “It must exercise the same degree of care as is required in the operation of its regular passenger trains (elevators), the difference only being that the passenger submits himself only to the inconvenience and danger necessarily attending that mode of conveyance.” In the quotation the word in parenthesis is ours. The rule1, however, is the same whether it be freight trains or freight elevators.

As the case must be reversed and remanded for the reason heretofore assigned, we think there is but one further question, which should be considered upon this appeal, and we discuss that question next.

VI. The defendant, Mississippi Valley Trust Company, urges that it is in no manner liable to plaintiff. This involves a construction of the contract between that company and the Century Building Company, and the relative positions of these two defendants under the contract as well as the law applicable thereto. The defendant says by way of brief:

“An agent is never liable to third persons for injuries resulting from the non-performance of an agent’s duties to his principal. Hence the Mississippi Valley Trust Company can, under no circumstances, be liable as agent for an injury sustained by a person injured in an elevator owned and operated by the Century Building Company.”

The identical contract involved in this case was in evidence in the case of Luckel v. Century Building Company, 177 Mo. 608. In that case the contract is set out in full and we will be content with tbe summary thereof in our statement. In construing that contract and the two deeds of trust involved in this case, the one admitted and the other excluded here, but both admitted in the Luckel case, Gantt, J., holds that the Mississippi Valley Trust Company was the agent of the Century Building Company with the power, among other things, “to hire and discharge employees to run the elevators.” In that case it was not necessary to discuss the full scope of this agency, but in this case it becomes important. This contract, as a whole, placed the entire management of the Century Building in the hands of the defendant, Mississippi Valley Trust Company. Ñot only that, but the purse-strings of the Century Building Company were placed in its hands. Under the evidence, the Mississippi Valley Trust Company through its sub-agents, persons paid by it, employed the help. All repairs were paid for by it and the wages of the servants were paid by it. In fact, it had full management and control of the building. We concede that for mere nonfeasance, pure and simple, the agent or servant is not liable to third persons. We so held in McGinnis v. Railroad Company, 200 Mo. 347, where the question is in a way discussed. But is the case at bar such a case? Under this contract the whole management of the building is placed in the hands of the Mississippi Valley Trust Company and the evidence tends to show that it immediately took such control, having its own sub-agents to look after the matter. It paid the operator of the elevator in question. It paid for repairs, when such were made. In fact, it paid all employees. When it undertook the management of this building from its principal, it undertook to do for the principal a particular work, and after it entered upon the performance of that work, any act which it did, whether by omission or commission, was misfeasance. After making this contract, had it stood aloof and refused to take the management of the building, and in so doing, thereby failed to do something which resulted in injury to a third person, it would not have been liable, because we would thus have mere nonfeasance. But after it assumed its management and thereby commenced to do the thing it contracted and agreed to do, then as said before, acts of omission or commission constitute misfeasance, or a failure to properly do the things which it had in the line of its duty commenced to do.

The rule is stated thus in 2 Clark & Skyles on the Law of Agency, sec. 505: “But where an agent is guilty of misfeasance, that is, where he has actually entered upon the performance of his duties to his principal, and in doing so, fails to respect the rights of others, by doing some wrong, whether it is a wrong of omission or a wrong of commission, as where he fails or neglects to use reasonable care and diligence in the performance of his duties, he will be personally responsible to a third person who is injured by reason of such misfeasance. ’ ’

And in section 596, the same authors say:

“ (a) In general. — As has been stated above there is a distinction between nonfeasance and misfeasance or malfeasance; and this distinction is often of great importance in determining an agent’s liability to third persons. By reason of some of the cases failing to clearly notice this distinction there has been some confusion in the decisions on this point. In this connection, nonfeasance means the total omission or failure of an agent to enter upon the performance of some distinct duty or undertaking, which he has agreed with his principal to do; misfeasance means the improper doing of an act which the agent might lawfully do, or in other words, it is the performing of his duty to. his principal in such a manner as to infringe upon the rights and privileges of third persons; and malfeasance is the doing of an act which he ought not to do at all. In the following sections the term misfeasance will include malfeasance. '
‘1 From these meanings, it will he seen that it is not every omission or failure to perform a duty that will constitute a nonfeasance, hut only an omission to perform such distinct duties as he owes to his principal, as distinguished from those which he owes to third persons or the public in general, as a member of society. Nonfeasance does not extend to the omission or failure, to do some act whereby a third person is injured, after he has once entered upon the performance of his contractual obligations.
“For example, if an agent undertakes to perform certain acts for another and he refuses or fails to enter upon such performance, it is a nonfeasance; but if he once begins the performance of such acts and in doing so fails or omits to do certain acts which he should have done, whereby a third person is injured, it is not a nonfeasance, but a misfeasance. Misfeasance may involve the omission to do something which ought to be done; as where an agent engaged in the performance of his undertaking, omits to do something which it is his duty to do under the circumstances, as when he does not exercise that degree of care which due regard for the rights of others requires.”

And in the same section, after discussing a few cases which announce the contrary view, the authors conclude in this language:

“The cases cited to the first two illustrations seemed to be so decided on the theory that the agent’s negligence in such cases amounts to nonfeasance; but the holdings of the cases cited to the last illustration seem to be sounder on principle, because they consider the agent’s negligence in such ease as misfeasance, and rightfully hold him liable therefor. If the distinction above noted is kept clearly in mind by the court, and nonfeasance held only to apply to cases where the agent fails to enter upon the performance of his contractual obligations, and not to cases where he has entered upon such performance but neglected his duties in some respects, this confusion would not arise.”

The doctrine of the text is supported by the following pointed and well-considered cases: Osborne v. Morgan, 130 Mass. 102; Ellis v. McNaughton, 76 Mich. 237; Greenberg v. Lumber Co., 90 Wis. 225; Baird v. Shipman, 132 Ill. 16; Lough v. Davis & Co., 30 Wash. 204.

We therefore conclude that both defendants are liable in this case, if either is liable.

For the error heretofore pointed out the judgment is reversed and cause remanded to be proceeded with in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    JOHNSON, Appellant, v. SNOW et al.
    Division One,
    February 22, 1907.
    FIRE-ESCAPE: Owners Liable: Common Law. For failure to erect fire-escapes to a hotel, in the manner prescribed by statute, not only the keeper, but the owner, is liable to a lodger in such hotel, for injuries due to a failure to erect such fire-escapes. The statute was designed to hold liable those who at common law were not liable, and the liability of a defendant is not to be determined by the rules of the common law in such cases, but by the statute itself, which makes it “the duty of the owner, proprietor, lessee or keeper of every hotel,” etc., “to provide said structure with fire-escapes.”
    Appeal from St. Louis City Circuit Court. — How. Moses N. Sale, Judge.
    Reversed and remanded.

      Ernest E. Wood for appellant.
    (1) The obligation to erect fire-escapes is upon all of the parties named in the statute, but primarily upon the owner. The Legislature meant the owner of the building and not the owner of the business, as the building and not the business is spoken of in the stat: ute. (2) The statute in section one places the duty of erecting fire-escapes upon the same person or persons for buildings already erected as it does upon buildings to be erected in the future. It must be the duty of the owner of the buildings in the future to erect necessary fire-escapes. Section one of the statute places the duty of erecting exterior stairways or fire-escapes upon the same person or persons as it does the interior stairways and, therefore, primarily upon the owner or owners of the building. (3) The terms of statute make the fire-escape a part of construction of the building itself. Afire-escape, from its very nature, is a part of the building. It is, therefore, primarily the duty of the owner to erect it when necessary. The statute says they must be stationary and made of iron. The statute calls for stair fire-escapes, ‘ ‘ constructed so as to be placed on a blank wall,” with balconies to reach the opening doors or windows. No tenant would be called upon to build such an improvement on his landlord’s property. (4) Under defendants’ contention, that the person in charge alone is liable, neither the owner nor his lessee would be necessarily liable, as both might have the business in charge of some other person. (5) Even if defendants’ contention were true in an ordinary case, it cannot be true in this case, as the defendants leased the building as a hotel and thereby made it a hotel. In their.lease they forbade the lessee from making any changes or alterations, commanded them to return the building over at the expiration of the lease as it was at the time of the lease, and reserved the right of entry. (6) Under the general law of landlord and tenant, the exterior fire-escape is such an improvement as the landlord is called upon to make. 2 Wood on Landlord and Tenant (2 Ed.), sec. 38; 2 Shearman & Redfield on Negligence (5 Ed.), 702 A; 1 McAdam on Landlord and Tenant (3 Ed.), 440; Landgraf v. Kuh, 189 111. 490; Abraham v. Bank, 16 N. Y. 750; McLaughlin v. Arm-field, 58 Hun 376. A tenant would not dare make such an alteration in a building. The fire-escape changes the appearance and value of a building and also the use to which it may be put. The owner receives the benefit of the improvement as the fire-escape remains on the building after the tenant departs. He should, therefore, erect it. It is unreasonable to impose upon a tenant the duty of erecting a part of the landlord’s building. (7) Under similar statutes most of the courts of other States have held that it is the primary duty of the owner or owners to erect the fire-escapes. Cases directly in point: Landgraf v. Kuh, 188 111. 490; Abraham v. Bank, 16 N. Y. 750; McLaughlin v. Armfield, 58 Hun 376; Sewall v. Moore, 166 Pa. St. 5701; In re Fire Escape v. Railroad, 298. Some other cases not so directly in point are: Weily v. Mulledy, 78 N. Y. 310'; Pauley v. Steam Gauge & Lantern Company, 131 N. Y. 90'; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Company, 154 N. Y. 474; Schwander v. Birge> 46 Hun 68; McAlpin v. Powell, 70 N. Y. 126; Rose v. King, 49 Ohio St. 213; Jetter v. Railroad, 2 Abb. App. 598. Cases to the contrary: Schott v. Harvey, 105 Pa. St. 227; Lee v, Smith, 42 Ohio St. 458. (8) Division No. 2 of the Supreme Court has decided that the primary duty to erect fire-escapes under the statute in question is upon the owner of the building. Yall v. Snow, 201 Mo, 511.

      Collins £ Chappell for respondents.
    (1) There is no duty under the common law upon any one to equip a building with fire-escapes. Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng. Ency. of Law (2 Ed.), 82, and note 1. (2) Section 9037, Revised Statutes 1899', has no application to this case. Yall v. Gillham, 86 S. W. 125. (3) Under the statute the duty of providing outside fire-escapes is imposed only upon the person who has the control, possession and occupancy of the building. Laws 1901, p. 219. (a) Statutes are to be construed with reference to the common law. Endlich on Interpretation of Statutes, sec. 127. A penal statute is to be construed strictly. Huies v. Railroad, 95 N. C. 434. The same rule of strict construction applies to statutes creating rights or fixing liabilities where none would otherwise exist, and to all statutes in derogation of the common law. Wilbur v. Crane, 13 Pick. 290 ; Rogers v. Currier, 13 Gray 139; West v. Railroad, 63 111. 545; Townsend v. Wilbur, 88 111. 197; Williams v. Vanderbilt, 145 111. 238; Dean v. Railroad, 119 N. Y. 540; Sutherland on Construction of Statutes, 374. (b) The liability is several and not joint and is imposed upon only one of the classes enumerated in the act. Schott v. Harvey, 105 Pa. St. 122. (c) At common law the duty to keep premises in a safe condition is upon the person in occupancy and control. Murray v. Richard, 52 Hun 613; Keating v. Stevenson, 21 N. Y. App. 837; Railroad v. Walker, 45 Ohio St. 577; Kent v. Rogers, 44 Conn. 291; Proctor v. Railroad, 64 Mo. 112; Lee v. Smith, 42 Ohio St. 459; Burns v. Fuchs, 28 Mo. App. 279; Gibson v. Perry, 29 Mo. 247; O’Neil v. Flanagan, 64 Mo. App. 87. (d) The act cannot and is not intended to apply to one who cannot comply with its requirements. Maker v. Slater Mill & Powder Co., 1 N. E. 176. (e) Section 4 of the act itself indicates that it was the person in possession or control of buildings erected prior to the passage of the act upon whom the duty of erecting fire-escapes was imposed, (f) The statutes and decisions of other States reviewed: Willey v. Mulleby, 78 N. Y. 310; Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Co., 154 N. Y. 474; McLaughlin v. Arm-field, 58 Hun 376; Lee v. Smith, 42 Ohio St. 458; Grant v. Slater Mill & Powder Co., 14 R. I. 380; McCulloch v. Ayer, 96 Fed. 178; Landgraf v. Kuh, 188 111. 484; Schott v. Harvey, 105 Pa. St. 222. (4) The act relied on is uncertain, and therefore void. (5) The terms of the lease do not impose upon the owner of the fee the duty of erecting fire-escapes.
   WOODSON, J.

This is a suit which was instituted by appellant in the circuit court of the city of St. Louis to recover the sum of twenty thousand dollars for personal injuries, alleged to have been caused by the negligence of the respondents.

The petition stated, substantially, that the respondents were the owners of a building in the city of St. Louis, three stories in height, with basement and attic; that on July 25, 1899', respondents rented the building to William and Catherine Gillham for hotel purposes; that the Gillhams took possession of the building, and were engaged in the hotel business in the same on the 9th day of February, 1902; that on said day appellant was a lodger in said hotel and occupied a room on the third floor; that on the night of February 9th a fire broke out in said hotel, and appellant attempted to escape therefrom, in the ordinary mode, bnt being unsuccessful, he jumped from his room to the ground, and received the injuries complained of; and that there were no fire-escapes on said building.

Appellant bases his right of recovery upon the ground that respondents negligently failed to erect the fire-escapes, and on that account he was injured.

To the petition respondents filed a demurrer on the ground that the owners of a leased building were not liable in the cause. The circuit court sustained the demurrer, and the appellant duly prosecuted his appeal to this court.

I. Section 1 of the Act of 1901, regarding fire-escapes, in part, provides as follows:

“It shall be the duty of the owner, proprietor, lessee, or keeper of every hotel ... in the State of Missouri .... which has a height of three or more stories to provide said structure with fire-escapes attached to the structure of the building and by staircases located on the interior of the building.” [Laws-1901, p. 219.]

The contention of the respondents is that the duty imposed by this act is not enjoined upon each and all of the persons or class of persons named, but upon one of them, to be determined according to each particular case; and that the common law must be resorted to in each case to ascertain who is liable for such an injury in case of fire. If we look to the common law to find who is responsible for such an injury, we find that the person who was in the occupancy and control of the building was alone liable. If the act meant to leave the liability where the common law placed it, then why were the words ‘ ‘ owner, proprietor, lessee or keeper ’ ’ used? If that was the meaning of the Legislature, it seems to us the duty would have been imposed either without naming anyone, and let the common law fix the responsibility upon the proper person or persons, or it would have imposed the duty upon the occupant in express terms. The use of the word “ owners” in the act indicates clearly that the Legislature meant to impose the duty upon more persons than the occupant alone. A person may be the owner of a hotel building, as was the fact in this case, and still not be the occupant or keeper thereof. According to respondents' contention, before the owner would be liable he would also have to be in the possession and control of the building at the time of the fire. Such a construction would be equivalent to striking out of the act the word owners and inserting in lieu thereof the words “the occupant or keeper,” neither of which has the same meaning as the word owner. They are not synonymous. Under such a construction the owner would never be liable except when he also had the possession and control of the building at the time of the fire.

The act does not impose a conditional liability upon the owner, conditioned upon his being in possession of the building at the time of the injury, but an absolute liability, and the same language is used in fixing the liability upon the proprietor, lessee and keeper.

"We are clearly of the opinion that the Legislature, by that act, meant to impose the duty of providing the fire-escapes upon all the parties therein designated, severally and not jointly. The State had no choice as to which of the designated parties should perform the duty imposed, but left that to be determined or settled among the parties interested in the property; and if anyone of them erected the escapes according to the statute, then all of them were discharged from all liability ; but, upon the other hand, until some one or all of them complied with the mandate of the law, all remained liable for its violation.

The many disastrous conflagrations, in hotels and other public buildings, crowded with human beings, which resulted in such frightful loss of life, about the time of the passage of this statute, show the salutary purpose the Legislature had in mind, and the purpose of its enactment. It was the intention to put a stop, in the future, to those appalling occurrences, by imposing the responsibility of erecting fire-escapes upon all parties interested in or who controlled the property. The Legislature intended to leave no doubt as to whose duty it should he to discharge that duty to the public by naming all parties who owned or had dominion over the property, as above stated.

But why discuss this question further? Division No. 2 of this court has recently construed this same act in passing upon another injury growing out of this same fire. [Coutant v. Snow, 201 Mo. 527; and Tall v. Snow, 201 Mo. 511.] We can add but little or nothing to the strong and lucid reasons there given, by Judge Oantt, for holding the owners of the building liable for that injury complained of.

Wherefore, the judgment of the circuit court is reversed and the cause remanded for trial.

All concpr.


text:
    COUCH et al. v. HARP et al., Appellants.
    Division One,
    February 22, 1907.
    1. RES ADJUDICATA: No Adjudication on Merits. Where the merits were not tried in the former suit, or were not settled by the agreement to dismiss, the plea of res adjudicata is not availing.
    2. RESULTING TRUST: Deed to Daughter: Insane Father. The rule that where a purchaser of land pays the purchase money and causes the deed to be made to a child, no resulting trust arises for the benefit of himself or his heirs, does not control if the purchaser at the time the deed was made to the child was insane. A confessed insane man can make no transfer of property, by deed or gift, which may not be assailed by him or his representatives or heirs.
    3. -: -: -: Defenses: Bond for Deed to Daughter’s Husband. Andrew Rice conveyed land to Couch’s daughter, for $400 paid by Couch, who was at the time insane. Couch’s other heirs sue the daughter and her husband to establish a resulting trust. At the trial defendants offered evidence, without objection, that Rice’s son, who for a time was a record owner of the title, had given a title bond to the husband by which, upon the payment of $400, evidenced by notes maturing later, he obligated himself to convey the land to the husband, and then conveyed to his father, the said Andrew. The husband and his wife filed an answer in which they say nothing about this transaction, but deny only the insanity of Couch and the fact that he paid the full purchase price for the land. At the time the deed was made the question of interest was discussed and Couch refused to pay more than $400, and the deed was made to the daughter, but no positive evidence was produced as to the interest paid. Held, first, that the husband was in court, and if he desired to claim an interest in the land by virtue of a payment of a part of the purchase money, he should have spoken as to the amount; second, if he intended to rely upon his bond for a deed, he should have pleaded this outstanding title; third, the testimony as to the title bond was wrongfully admitted, under the pleadings;' and, fourth, the bond for a deed not being in evidence, and its terms and conditions not being shown, it cannot be assumed that there was not a breach thereof before Couch paid the ?400 for the deed to the daughter.
    Appeal from Ralls Circuit Court. — Hon. David II. Eby, Judge.
    Affirmed.

      Roy é Hays for appellants.
    (1) George P. Rice executed title bond for tbe land to defendant Henry O. Harp for consideration of $400 to be paid in one, two, three and four years, at seven or eight per cent. Tbis was done with tbe consent of A. J. Rice. George P. Rice then conveyed to A. J. Rice. Henry C. Harp paid tbe interest for two or three years to A. J. Rice, who then conveyed to defendant Margaret L. Harp, upon tbe payment of tbe principal $400 by Couch, tbe deceased. There is nothing to show that either of defendants, Margaret L. Harp or Henry C. Harp, knew of tbe payment of tbe $400 at the time, or consented to it. By tbe title bond Henry G Harp became entitled to the deed to tbe land upon tbe payment of $400 and interest. Tbe interest be paid. Tbe subsequent payment'of tbe $400 by Couch could not raise a resulting trust in Couch. In order to create a resulting trust, it is absolutely indispensable that tbe payment should be actually made by tbe beneficiary, or that an absolute obligation to pay should be incurred by him as a part of tbe original contract of purchase, at or before tbe time of the conveyance. No subsequent and entirely independent conduct, intervention or payment on bis part would raise any resulting trust. Weiss v. Heilkamp, 127 Mo. 31; 1 Perry on Trusts (4 Ed.), sec. 76; Bispham’s Equity (4 Ed.), secs. 81-82; Sell v. West, 125 Mo. 631; Kelly v. Johnson 28 Mo. 249. (2) The courts should not, in order to establish a resulting trust, deprive a party of his interest in land without his consent and without compensation. Henry C. Harp was the equitable owner of the land, and- entitled to the legal title upon the payment of $400. How could Couch, without Henry C. Harp’s consent, deprive him of his rights, by paying any part of the purchase money? If the land had been conveyed to Couch himself, instead of to Mrs. Harp, then Henry C. Harp could have compelled Couch to convey to him (Harp) on the payment of the $400. The husband, Henry C. 'Harp, is now entitled, on the facts shown in evidence, to have the title decreed in him upon the payment of the $400 against all the parties concerned, and even against his wife. The presumption in favor of a resulting trust can be overthrown by showing that such was not the intent of the parties. Morris v. Clare, 132 Mo. 236; Darrier v. Darrier, 58 Mo. 222. (3) The evidence shows that the former case, involving the issues between the same parties, was by agreement of parties dismissed upon the withdrawal of the plaintiffs’ cost bond by agreement. This operated as res judicata. Freeman on Judgments (1 Ed.), sec. 262; 2 Beach on Judgments, secs. 705 and 706.

      J. O. Allison and E. L. Corwine for respondents.
    (1) Equity will declare a constructive trust on the facts shown in evidence. The consideration for the transfer is paid with money of Couch, who is admitted to be incompetent. Plaintiffs, the heirs of Couch, have no remedy against A. J. Bice, the grantor, who is shown to be insolvent. Margaret L. Harp having obtained the legal title to the land with the money of Couch (who cannot make a gift), holds the same in trust for Couch’s heirs. Constructive trusts are those ■which, are “superinduced upon the transaction by operation of law as matters of equity independently of the intention of the parties.” The principle is simply that equity will not permit one to obtain an unearned benefit at the cost of another without that other’s consent. 2 Pomeroy’s Equity Jurisprudence (2 Ed.), secs. 987, 1044; Bispham’s Principles of Equity (4 Ed.), sec. 91; Clark v. Bank, 57 Mo. App. 277; Harrison v. Murphy, 106 Mo. App. 465; Crawford v. Jones, 163 Mo. 577. (2) Plea of res adjudicada admits plaintiffs’ prima facie case. Stone v. United Workmen, 117 Mo. App'. 295. (3) The former case, judgment on which is pleaded as a bar by appellants, was not tried on its merits. Nor was there an agreement as to the merits by stipulation or otherwise, nor any adjustment of the property rights. The parties were not the same in the former suit. Isabella A. Couch was a party defendant there and is not a party here. The minor defendants, Elmer and Lizzie Lawson, were not represented by guardian or next friend in said former suit. In order to support the plea of res adjudicada, there must be a judgment on the merits in a case involving the same subject-matter between the same parties plaintiff and defendant, all of whom must be sui juris. Tutt v. Price, 7 Mo. App'. 194; City of Springfield v. Plummer, 89' Mo. App. 515; Short v. Taylor, 137 Mo. 517; Baldwin v. Donaldson, 139 Mo. 118.
   GRAVES, J.

Action to declare a trust in fifty-five acres of land in Ralls county and to partition the same among the beneficiaries of the trust. Plaintiffs and defendants, with the exception of Henry O. Harp, are the heirs at law of Jacob' W. Couch, deceased. Henry C. Harp, defendant, is the husband of defendant, Margaret L. Harp, who is a daughter and one of the seven children of said Jacob W. Couch. By the petition it is charged that the land in question was conveyed by Andrew J. Rice and wife to defendant Margaret L. Harp, but that the purchase price of four hundred dollars was paid by Jacob W. Couch, who at the time and for a long time prior was insane and so remained insane to the date of his death and that he was in no mental condition to make a valid gift to Mrs. Harp either in money or land. Plaintiffs asked the court to declare that Margaret L. Harp held the land in trust for herself and the other heirs of said Couch, deceased, and to partition it among them.

The joint answer of defendants Margaret L. Harp and Henry C. Harp admit the allegations of the petition as to the death of Jacob W. Couch, intestate, and the legal heirs of said Couch; admit that they are in possession and had been since November 21, 1895; admit the execution of the deed by Rice and wife on November 21, 1895, but as to this transaction they add: “These defendants deny that neither the said Margaret L. Harp nor said Henry L. Harp at said date or at any other time paid the purchase price of said lands or any part thereof and that the purchase price was paid by Jacob W. Couch and aver that the purchase price of said lands was paid at least in part by Henry ■C. Harp. And defendants deny each and every allegation in said petition contained not hereinabove specially admitted to be true.”

There then follows a plea of former adjudication.

The guardian ad litem of the other defendants admits the title to the land as pleaded by the plaintiffs. Reply was general denial.

On the trial it was admitted that Jacob' W. Couch was of unsound mind as alleged in the petition. It was conclusively shown that he paid to Rice the $400 for the land, and directed the deed made to Margaret L. Harp. It was further shown, as charged in the petition, that Rice was and had been at all times insolvent. Although not specifically pleaded by the Harps it was developed by the testimony of a witness for plaintiffs, George P. Rice, that he, witness, held, at one time, title to the land; that while he so held title, with the consent of his father A. J. Rice, he sold the land to Henry C. Harp for $400, taking notes for the purchase price and giving a bond for a deed. That he then conveyed to A. J. Rice, his father. This testimony seems to have gone without objection. The same witness testified that Henry C. Harp had, as he, witness, thought, paid interest on the notes to his father. The notes and alleged bond for deed were not introduced. It also appears from the evidence that Jacob W. Couch, deceased, refused to pay the back interest at the date of the deed; what the amount of the alleged back interest was, does not appear. But whatever it was, the $400 was accepted in full payment for the land.

The decree of the court was in favor of plaintiffs and in accordance with the prayer of their petition, both as to declaring the trust and the partition of the land. Motions for new trial and in arrest of judgment proving unavailing, defendants, Harps, appealed.

. I. We will take the question of res adjudicada first, and in disposing of this question a little fuller statement of the facts upon that point will be required. In 1902, the same plaintiffs instituted a similar suit to the one at bar. The defendants were the same, except Isabella A. Couch was a defendant in that case and not in this case. She was the widow of Jacob W. Couch, deceased, and had died prior to the institution of the present suit. Motion for cost bond was filed in this former suit. Motion was sustained and a cost bond filed. The two Harps filed their joint answer. No guardian ad litem, was appointed for the two minor defendants, Elmer and Lizzie Lawson. On this state of the record, the court entered the following order:

“On this day eom,e the parties herein by their respective attorneys, and by agreement of parties, the court doth grant the plaintiffs leave to withdraw their bond for costs filed in this cause. And thereupon by agreement of the parties herein this cause is by order of the court dismissed at plaintiff’s ’ costs. Wherefore it is considered and adjudged by the court that plaintiffs take nothing by their writ herein, and that defendants go hereof without day and have and recover of the plaintiffs all their costs herein incurred and have hereof their execution therefor.”

The abstract before us then shows the following as to the oral testimony upon this question:

“T. C. Hays testified: I was counsel for defendants, Harp and Harp, in said former case. The facts in controversy are the same in both cases and the same parties except that Isabella Couch, defendant in former case, widow of Jacob W. Couch, whose dower interest died with her. The consideration for the agreement to withdraw cost bond in former case, as I understand it, was the dismissal of the case.
“Cross-Examination. There was no money or property adjustment of the case.
“Plaintiffs’ evidence in rebuttal:
“E. L. Corwine testified: I was counsel for plaintiffs in said former suit. That case was simply dismissed. The cost bond was withdrawn by agreement and the ease dismissed by plaintiff.
“This was all the evidence in the case.”

From this it appears that there was no trial of the merits at all. And further in the language of the counsel for the Harps, who was testifying for them as a witness in the case at bar, “there was no money or property adjustment of the case. ’ ’ In fact, there could have been no valid adjustment with the two minor defendants, Elmer and Lizzie Lawson, who were in court, it is true, but without a guardian ad litem up to the time of the dismissal of the original cause.

The subject-matter of the former suit is the same as in this case; we likewise have the identity of the cause of action, identity as to the quality of the persons for and against whom the claim is made, and with the exception of Isabella A. Couch, widow of the deceased, Jacob W. Couch, identity of the parties. She at most held only a dower interest, which died with her, so that we think there was identity of parties. These four identities meet the requirements of the theory and doctrine of res adjudicata. [Pickel Stone Co. v. Wall, 108 Mo. App. 495.]

But the trouble about the case at bar is, that while the subject-matter is identical and the cause of action as set out in the pleadings is identical, there was no trial and judgment upon the merits of the controversy. Under such circumstances the plea of res adjudicata must fail. [Baldwin v. Davidson, 139 Mo. 118; Short v. Taylor, 137 Mo. 517.]

The most we make of this, record pleaded as res adjudicata is that there was an agreement to the effect that the plaintiffs could withdraw the cost bond filed, and could thereupon dismiss their case at their costs. The merits were never tried or even settled, and the trial court was right in so holding. We therefore rule the plea of res adjudicata against the defendants.

II. We reach now the alleged error of the trial court in declaring the trust and partitioning the estate, under the evidence, notwithstanding its adverse ruling as to the question of res adjudicata.

We think the true rule is announced by Shebwood> J., in Darrier v. Darrier, 58 Mo. l. c. 226, where it is said:

“Where the purchaser of land pays the purchase money and takes the title in the name of a stranger, the presumption at once arises that the benefits accruing from the purchase are to go to him who paid the consideration. But a different rule prevails and a different presumption springs into being where, under similar circumstances, the conveyance is taken in the name of a wife or child; there, the obligation under which the purchaser rests to provide for the one in whose name the title is taken, will countervail any inference that a resulting trust was intended in facor of the actual purchaser. [Perry on Trusts, sec 143; 2 Sto. Eq. Jur. sec. 1201, and eases cited.] ”

Had Jacob W. Couch, deceased, been of sound mind, at the time he purchased this property and paid the consideration, and had then directed the deed made to his daughter, Mrs. Harp, as he did do, there would be no question in this case. In other words, but for the admitted insanity of the said Couch, there would clearly be no resulting trust. Had he, in full power of mind, directed the deed to a stranger, a resulting trust arises, but not so, without further proof, as to a wife or child. Under proper conditions and surroundings he would have had, being of sound mind, the right to give the property to the wife or child, so that on the face of this transaction, without the admission of insanity, we would be constrained to hold that there was no resulting trust. [15 Am. and Eng. Ency. Law (2 Ed.), 1126.]

But when we take the whole evidence,- including the admission of insanity, a totally different question is presented. It requires no citation of authority that a confessed insane man can make no transfer of property, whether by deed or gift, which may not be attacked by him or his representatives or heirs. The heirs attack it here. The parties holding property show no equities whatever. Under such circumstances the doctrine is announced thus in 15 Am. and Eng. Ency. Law (2 Ed.), 1127: “Where property is conveyed by a person non sui juris the grantee may be held a trustee. ’ ’

So that in our judgment there was no error upon the part of the trial court in declaring the trust, unless it be by what will be discussed in the succeeding paragraph.

III. The next and last contention npon the part of defendant is that the evidence shows that George P. Rice, who for awhile was the record owner of the land, had given a title bond to defendant Henry G. Harp, by which npon the payment of $400 evidenced by notes maturing later, he obligated himself to convey the said land to said Harp. As stated there is such oral evidence in the record, going in without objection, but the notes and bond for deed are not in evidence. Further, Henry C. Harp' is a defendant and with his wife files an answer, in which nothing is said about such a conveyance. The only thing he denies in the answer is the alleged insanity of Couch, deceased, and the fact that Couch, deceased, paid the full purchase price for the land. The agreed purchase price to Harp was $400, and the agreed purchase price to Jacob W. Couch, deceased, was $400, and Couch paid this sum. It appears that at the time the deed was made, the question of interest was discussed and he refused to pay more than $400, and thereupon the deed was made to Mrs. Harp, at his, Couch’s direction. No positive evidence is introduced as to the amount of interest, if any, paid by Henry C. Harp. One witness thinks he paid interest for a year or two, but does not know. Harp is a defendant and tries to make no further showing than this incidental testimony, admitted wrongfully under the pleadings, but without objection.

Under these circumstances, we think first, that if he desired to claim an interest in the land, by virtue of a payment of a part of the purchase money, he was in court and could have spoken as to the amount, and, secondly, if he is relying upon his bond for a deed, he should have pleaded this outstanding title, if in fact there was such. It might be well to add that there is no evidence of such instrument being of record.

Further, even if he had a bond for a deed from the younger Rice, yet the terms and conditions thereof are not shown, and there may have been a breach thereof upon the part of Harp long before the making of the deed.

But at all events, if he had such a bond for a deed, it should have been pleaded and introduced in evidence to convince the court that reliance was made thereon. This was not done.

We conclude therefore that this cause has been fairly tried, the merits thereof properly adjudicated, with substantial justice to the parties, and the judgment should be and is affirmed.

All concur.