source: Caselaw Access Project

author: LAMM, C. J. —

license: Public Domain

text:
    ROSETTA KEELE v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant.
    In Banc,
    May 20, 1914.
    1. NEGLIGENCE: Omitting to Put Issue to Jury. Although the petition in the negligence case counted on defendant’s failure to sound the whistle, as the statute required, yet if plaintiff’s instruction did not put that issue to the jury, it fell out of the case, and must be considered abandoned.
    2. -: Child as Adult: Conceded in Plaintiff’s Instruction. The trial theory abides for appellate purposes; so that, where plaintiff’s given instruction specifically declared “deceased was negligent in approaching and going upon the track of the defendant upon which she was struck by a train,” plaintiff thereby put her case to the jury upon the theory that decedent, though only fifteen years of age, was sui juris, and thereby removed from the case the vexed questions of the heedlessness, buoyancy, inadvertence, lapses and the daring of youth as elements in ascribing blame or fixing responsibility for the act.
    3. --: Going On Railroad Track at Crossing: Concurrent Negligence: Humanity Doctrine: No Danger Zone. One about to go upon a railroad crossing owes it to himself to stop and listen, and if he is guilty of negligence in going upon it and is injured by an on-coming train, even though those in charge of the train are negligent in not sounding the bell, as the statute requires, the concurrent negligence of the pedestrian and of the railroad bar a recovery for the injury, unless plaintiff’s case is saved by the application of the humanitarian doctrine; but that doctrine does not apply where there is no danger zone; that is, the pedestrian must be or can be seen to be in peril in time to stop the train before striking him. The engineer seeing a person sui juris approaching the track on foot in an ordinary walk may act on the presumption the person will stop before stepping thereon immediately in front of his engine.

      i. -: Humanity Doctrine: Oblivious to Danger: Holding Hat in Wind. The fact that the fifteen-year-old girl, admitted to have been negligent and therefore sui juris, was holding her hat rim down in a stiff wind, hard to face, because it carried sand and dust, blowing from the same direction from which the train was approaching, and had her head bent a little down and away from the train, did not indicate she was oblivious to danger or that she intended to attempt to cross the track in front of the approaching train or did not know of its approach.
    o. -: Kansas Law. The negligence law of Kansas, as expounded by her Supreme Court, is much the same as that of Missouri.
    6. FORMER APPEAL: Decision of Court of Appeals: Res Adjudicata: Law of Case. While an opinion of a court of appeals on a former appeal in the same case is persuasive and is usually followed, yet where, after a retrial the whole case is brought to the Supreme Court and no part of it left behind, such an opinion is not binding on the Supreme Court as either ires adjudicata or the law of the case. In this case, the Kansas City Court of Appeals had held there was a case for the jury and remanded the cause for a new trial, and it is held, after another verdict for the plaintiff and another appeal, that defendant’s demurrer to the evidence should have been sustained.
    Appeal from Jackson Circuit Court. — Mon. O. A. Lucas, Judge.
    Reversed.

      Thomas B. Morrow, Cyrus Crane, James P. Gilmore, John E. Lathrop and George J. Mersereau for appellant.
    (1) The accident and death resulting therefrom, having occurred in the State of Kansas, the laws of that State determine whether or not any cause of action existed for and on account'of such death. Yost v. Railroad, 149 S. W. 577; Newlin v. Railroad, 222 Mo. 375; Root v. Railroad, 195 Mo. 345; McGinnis v. Car & Foundry Co., 174 Mo. 227; Fogarty v. Transfer Co., 180 Mo. 490; Chandler v. Railroad, 127 Mo. App. 34; Benedict v. Railroad, 104 Mo. App. 218; Williams v. Bailroad, 106 Mo. App. 661. (2) Upon the entire record, under the decision of the Supreme Court of Kansas, the deceased was guilty of such negligence, or contributory negligence, that no recovery can be sustained in this case. Dyerson v. Bailroad, 74 Kan. 528; Coleman v. Bailroad, 123 Pac. 756; Dunlap v. Bail-road, 123 Pac. 754; Marple v. Bailroad, 85 Kan. 699; Beech v. Bailroad, 85 Kan. 90; Jones v. Railroad, 85 Kan. 313; Bailroad v. Townsend, 39 Kan. 115; Bailroad v. Adams, 33 Kan. 427; Bailroad v. Fisher, 49 Kan. 460; Bailroad v. Priest, 501 Kan. 16; Young v. Railroad, 57 Kan. 144; Bush v. Bailroad, 62 Kan. 709; Railroad v. Wheelbarger, 75 Kan. 811; Boach v. Railroad; 55 Kan. 654; Bailroad v. Holland, 60 Kan. 209; Limb v. Railroad, 73 Kan. 220 ; Bailroad v. Trahern, 77 Kan. 803; Bailroad v. Hutchinson, 39 Kan. 485; Bailroad v. Sehwindt, 67 Kan. 8; Bailroad v. McMinn, 72 Kan. 681; Zirlde v. Railroad, 67 Kan. 77; Bailroad v. Bussye, 66 Kan. 735; Railroad v. Wheeler, 801 Kan. 187; Carey v. Railroad, 84 Kan. 274; Bailroad v. Entsminger, 76 Kan. 746; O’Brien v. Loomis, 43 Mo. App. 29; Bailroad v. Baker, 104 S. W. 1182; Greathouse v. Croan, 76 S. W. 273; Hollerson v. Bailroad, 157 Mo. 216. (3) Also, upon the entire record, under the decisions of the Supreme Court and of the Courts of Appeals of Missouri, deceased was guilty of such negligence, or contributory negligence, that no recovery can be had in this case, irrespective of anything that is, or might be pleaded, and, while the decisions of the Supreme Court of Kansas fully deny a recovery, the opinion in this case on the former appeal ought to be overruled', and the law declared as it is and always has been, with the exception of such former erroneous opinion. Dyeez v. Railroad, 238' Mo. 33; Laun v. Bail-road, 216 Mo. 563; McGee v. Bailroad, 214 Mo. 530; Stotler v. Bailroad, 204 Mo. 619; Bies v. Transit Co., 179 Mo. 1; Petty v. Railroad, 179 Mo. 666; Lennon v. Bailroad, 198 Mo, 514; Green y, Railroad, 192 Mo. 131; Schmidt v. Bailroad, 191 Mo. 215; Markowitz v. Bailroad, 186 Mo. 350; Mockowik v. Bailroad, 196 Mo. 550; Wasmer v. Bailroad, 148 S. W. 155; White v. Bailroad, 159 Mo. App. 508; Haffey v. Bailroad, 154 Mo. App. 493; Beardon v. Bailroad, 114 Mo. 384; Caldwell v. Bailroad, 58 Mo. App. 453; Sites v. Knott., 197 Mo. 684; Yancey v. Bailroad, 93 Mo. 433; Boyd v. Bailroad, 105 Mo. 371; Moore v. Bailroad, 176 Mo. 528; Kelley v. Bailroad, 75 Mo. 138; Harlan y. Bail-road, 64 Mo. 480; Harlan v. Bailroad, 65 Mo. 22; Beno y. Bailroad, 180 Mo. 470; McCreery v. Bailroad, 221 Mo. 18; Van Bach v. Bailroad, 171 Mo. 338; Gnyer v. Bailroad, 174 Mo. 344; Butts v. Bailroad, 98 Mo. 272; Watson y. Bailroad, 133 Mo. 246; Penell v. Bailroad, 153 Mo. App. 566; Hamilton v. Marks, 63 Mo. 172; Bntledge v. Bailroad, 123 Mo. 121; Schaub v. Bail-road, 133 Mo. App. 444; Duncan v. Bailroad, 46 Mo. App. 199; Lien v. Bailroad, 79 Mo. App. 475; Jones v. Bailroad, 63 Mo. App. 501; Drake v. Bailroad, 51 Mo. App. 562; Boring v. Bailroad, 194 Mo. 541; dardina v. Bail'road, 185 Mo. 330; McCauley v. Transit Co., 179 Mo. 583 ; Peterson v. Bailroad, 156 Mo. 552; Hayden v. Bailroad, 124 Mo. 566; Kelsay v. Bailroad, 129 Mo. 365; Lane v. Bailroad, 132 Mo. 4; Sanguinette v. Bailroad, 196 Mo. 466; Moody v. Bailroad, 68 Mo. 670; Payne v. Bailroad, 136 Mo. 562; Hook v. Bailroad, 162 Mo. 567; Walker v. Bailroad, 193 Mo. 453; Zimmerman v. Bailroad, 71 Mo. 636; Henze v. Bailroad, 71 Mo. 636; Purl v. Bailroad, 72 Mo. 168; Turner v. Bailroad, 74 Mo. 802; Hixon v. Bailroad, 80 Mo. 335; Fox v. Bailroad, 85 Mo. 679; Huggart v. Bailroad, 134 Mo. 673; Porter v. Bailroad, 199 Mo. 82; Higgins v. Bailroad, 197 Mo. 300; Fletcher v. Bailroad, 64 Mo. 484; Lenix v. Bailroad, 76 Mo. 86; Stepp v. Bailroad, 85 Mo. 229; Matz v. Bailroad, 217 Mo. 275; McCrath v. Transit Co., 197 Mo. 97; Clancy v. Transit Co., 192 Mo. 615; Evans v. Bailroad, 178 Mo. 504; Davis v. Bail-road, 158 Mo. 1; Degonia v. Railroad, 224 Mo. 564; ITawkins v. Railroad, 135- Mo. App. 524; Tanner v. Railroad, 161 Mo. 497; King v. Railroad, 211 Mo. 1. (4) The doctrine of stare decisis or of res judicata will not apply in this case, as the testimony in the record is entirely different from that on the former appeal. Fuchs v. City, 167 Mo. 620; Kelly v. Thuey, 143 Mo. 422; Mfg. Co. v. Troll, 77 Mo. App. 339:

      Charles A. Stratton and Bird <& Pope for respondent.
    (1) On this, the second appeal of this case, the law laid down in the first appeal governs on this, the second appeal. Palmer v. Reeves, 142 S. W. (K. C. Court App.) 1080; Parker-Washington Co. v. Transit Co., 147 S. W. (St. L. Court App.) 189: It has never been held that a ruling upon one state of facts is a conclusive adjudication of the law applicable to a state of facts essentially different from the former. Parker-Washington Co. v. Transit Co., 147 S. W. (St. L. Court App.) 189. But the second appeal in this case presents no such difference in the state of acts. (2) While the plaintiff pleaded the statutes of Kansas, and introduced them in evidence in support of her cause, the appellant now contends that the plaintiff is debarred of her recovery by the decision in the Dyerson case, 74 Kan. 52:4. This contention of the defendant is without merit, and is unsupported by either the Kansas or Missouri cases. Met. St. Ry. v. Arnold, 67 Kan. 260; Coasting Co. v. Tolson, 139 U. S. 551; Railroad v. Ives, 144 U. S. 408; Hurdle v. Railroad, 73 Kan. 769; Railroad v. Baker, 79 Kan. 183, 21 L. R. A. (N. S.) 247. Under the decisions of the Kansas court Dyerson could not recover unless he was in unconscious or helpless peril. Smith v. Railroad, 114 N. C. 728. And such is the law in this State. Shanks v. Traction Co., 101 Mo. App. 702; Kinlen v. Met. St. Ry. Co., 216 Mo. 145; Smith v, Railroad, 129 Mo. App. 413. This case was reversed by the Kansas City Court of Appeals solely because the trial court did not, by its instructions, require the jury to find, as a condition for a recovery, that the employees of the defendant should have seen Pearl Keele “was oblivious of her danger, and if not warned would place herself in the way of the train.” But, even if it is necessary to show “wantonness” by the evidence, the facts disclosed by the record show wanton conduct on the part of the engineer and fireman. McNamara v. Met. St. Ry. Co., 133 Mo. App. 645; Zalotuehin v. Met. St. Ry. Co., 127 Mo. App. 572; Kellny v. Railroad, 101 Mo. 67; White v. Railroad, 202 Mo. 539; Johnson v. Railroad, 203 Mo. 381; Brown v. Knapp. & Co., 213 Mo. 694. (3) There is no essential difference in the testimony.
   LAMM, C. J. —

The parents of Pearl E. Keele, a minor, sued the corporate defendant in the Jackson Circuit Court for her negligent death where- a county road crossed defendant’s track in Kansas. Presently the father dying, plaintiff, the mother, filed an amended petition and (over the answer of defendant taking issue thereon) was allowed to prosecute the action to a judgment in her sole name. She had a verdict for $5000. Prom a judgment following, defendant appealed to the Kansas. City Court of Appeals. That court, being of opinion constitutional questions were involved, sent the case here, and (as we overruled a motion to retransfer it) here it is.

Questions are raised on constitutional law, on pleadings, on practice, on evidence, on instructions given for the plaintiff and refused to defendant. One of the latter hinges, on the sufficiency ' of the evidence to make a case, either under the law of negligence as administered in Kansas or in this State. That contention seeks the fact and trial issues thereon. If, under the grounds of recovery (relied on pro) and the defense of contributory negligence (relied on con) there is no case on the facts, then the case breaks at that point and all other questions become unimportant. If there be a case on the facts, then other questions remain to be reached and disposed of in their order. Attend to the matter from the viewpoint of case or no ease.

We omit pleadings. Let it be assumed that plaintiff’s principal instruction was. within the averments of the petition. It suggests the gravaman of the action, indicates'the trial theory and-reads in part, and so far as material, thus:

“The court instructs the jury that Pearl E. Keele, deceased, was negligent in approaching and going upon the track of the defendant upon which she was struck by a train of the defendant; still, if you further .believe and find from the evidence that said Pearl E. Keele was approaching and going upon the track of the defendant upon which she was struck and into a position of peril of being struck by said train, and that she was unaware of.and oblivious to such danger, and if you further believe and find from the evidence, that the engineer or fireman of said train, by keeping a vigilant lookout ahead of him, could, by the exercise of ordinary care, have discovered that said Pearl E. Keele, deceased, was approaching said track, and was going into a position of peril of being struck by said train, and that she was unaware of and oblivious of her danger, and that if she was not warned before she went on said track she would place herself in the way of said train, and if you further believe and find from the evidence that said engineer or fireman could, by the exercise of ordinary care 'have warned said Pearl E. Keele of the approach of said train by the whistle or bell of said engine before she went on said track, and could thereby, by the exercise of ordinary-care, have avoided striking and injuring her, and negligently failed to give such warning of the approach of said train; and if yon further believe and find from the evidence that if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would not have been been struck and injured by said train, you will find for the plaintiff. And you are further instructed that, in the absence of evidence or circumstances to the contrary, you may assume that if such warning by the, whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would have heard it. And,” etc.

There was a bundle of specifications of negligence in the petition, besides those set forth in the instruction, but all of them fell out of the case except (1) absence of ordinary care - in failing to keep an outlook, and (2) failing to warn decedent by bell or whistle as she was going on the track oblivious to her own danger.

There was, as said, a plea of contributory negligence. With that instruction, and the pleadings as indicated, kept in mind, attend to the facts.

At six thirty in the afternoon of a day in May, 1906, whilst yet full day, Pearl E. Keele (on foot from the north) walked to the south on a north-and-south public road in Wyandotte county, Kansas. That road crossed at right angles a cluster of, say, fifteen tracks in defendant’s yard in the country, west of the limits of a town called Argentine. The tracks in said yard ran east and west. Two of them, those to the south, were passenger tracks, the rest to the north were freight and side tracks.

A photograph in evidence shows the place, except as to cars standing on the freight tracks, to be presently mentioned. In the picture the eye looks to the west, the south side being to the left and the north to the right. We cannot do better than to reproduce it; for all sides admit its accuracy and it depicts the scene at one stroke thus:

The heavy, dark, irregular line cutting the yard tracks indicates the road-crossing and the line of travel of decedent. As decedent, heading south, reached the first rail of the last track on the left, she was struck by the pilot-beam of an engine pulling a passenger train east and running very fast, say, forty or fifty miles an hour, and was instantly killed, being tossed back north and. to the east a great ways. We will call the first track on the left No. 1, the next No. 2, the next No. 3, and so on. Prom track No. 1 to track No. 3, was the rise of 28 feet. Commencing on the north side of the yard and coming on down south to track No. 3', freight cars (mostly loaded coal cars) were standing at the time on some of the tracks both east and west (more to the west than to the east) of the road crossing, leaving the crossing free. The witnesses vary on the distance of those ears from the crossing and on whether they were in strings or broken up, but the variance is immaterial. There was testimony that despite those cars men walking over these tracks, if attentive, could see the top of the east going passenger train to the southwest on track No. 1 and the smoke and smokestack of its engine, at that time belching black smoke from the fireman’s feeding his fire. But whether the eye of decedent, a person five feet two inches high, could clear the freight cars to her right as she crossed the freight tracks, and see the eastbound passenger train, is not shown. I think it may be assumed decedent could not see the train until she got within twenty-eight feet of track No. 1, that is, till she got over track No. 3. When she reached that point, and while she was passing over said last twenty-eight feet, there was no obstruction to her view to the west for one mile. The passenger1 tracks were straight and on a level, or very slight down grade to the east, and, had she glanced to the west, the train was in full sight during all the time she traveled that twenty-eight feet. Though the day was clear there was a stiff wind blowing in gusts, some of plaintiff’s witnesses say from the south, some from the west and some from the southwest. It was a wind hard to face for it carried sand and dust, the region being sandy and loose sand lying about.

At some time and at some distance from track No. 1 not clearly shown, on her trip over this crossing, there was testimony that decedent took hold of the rim of her hat with one hand and pulled it down in front ■of her face or to the right side of her face, obviously as a wind shield or to hold her hat on her head. The size of the hat rim was not shown. There were two eye witnesses following fifty feet behind her and observant of her conduct. One of plaintiff’s witnesses described her as walking right along with her head bent a little down like a person might in a strong wind. Another describes- her “as walking along like a girl would, holding her hat. ’ ’ In that fix she walked leisurely without stop over this twenty-eight feet in an ordinary walk, never looking to the west or listening, so far as human eye could see, and met her death at the end of the engine pilot-beam as she reached the north rail of track No. 1. The rumble of this train was heard by some of plaintiff’s witnesses-, who were near the crossing, for a mile to the west. By others it was shown the train made “no noise.” There is no dispute but what the engineer was at his station on the south side of the engine cab and alert on his outlook. He did not see decedent and testified the boiler of the engine would not admit of it, she coming from the north side. There is no dispute but what the fireman was shovelling coal to feed his- fire, to make steam enough to carry the train through the intricate network of tracks lying to the east as he approached Kansas City, so he might uninterruptedly assist in the outlook necessary there. He did not see decedent. Neither of them heard of the accident until the next morning.

On plaintiff’s behalf there was testimony that no whistle blew or bell rang as the train approached and crossed the public road. Contra, on defendant’s behalf there was testimony that an automatic engine-bell was set ringing a mile west of the place and thereafter rang continuously up to and over the crossing and until the train reached the station at Kansas City. Also that the crossing whistle sounded at the regulation place.

{Note-. The statutes of Kansas, read into the record, require that, except in cities and towns, -a steam whistle attached to each locomotive engine shall be sounded three times at least eighty rods from the place where the railroad crosses any public road or street, and prescribes that the corporation shall be liable for all damages sustained by any person by reason of' such neglect. Other statutes, read into the case, provide that an action such as this shall survive in favor of the next of kin. But, whilst the petition, counts on the omission of the statutory signals, it will be observed that plaintiff’s instruction did not put that issue to the jury. The rule is that what does not appear among the issues submitted is the same as if it it did not appear at all, hence we pass that issue by.)

We come now to a class, of facts bearing on the capacity, the maturity, of decedent, all established by plaintiff’s own proof. She was within ten days of fifteen years of her age, a ‘ ‘good-sized girl of her age, ’ ’ weighing over one hundred pounds and within half an inch of being as tall as her mother, to-wit, five feet, two inches. Let her mother, the plaintiff, tell the story and the whole of it on the point, viz.: She was “bright and intelligent.” She was next to the oldest in a family of five children. The mother “would go away and leave her with the whole care of the children.” She “took care of them as good as” the mother could. She was earning seventy-five cents a day in Proctor & G-amble Soap Factory where she had been employed a week. “In general housework she could do as good as” the mother could. She could sew on the machine in plain sewing as “good as anyone could,” made clothes for the children, was perfectly healthy, and an extraordinary strong girl for her age. ‘1 She used to go right along with me, ’ ’ the mother said, “and in lifting or moving, cleaning house or anything she could lift as much as I could or in moving things do it just as easy as I could.” She was about to enter high-school, having practically finished the eighth grade in one of the schools of Argentine. She could “cook and wash and iron and scrub.” She nursed and took care of the children. Her hearing was good. Her eyesight was good. She was familiar with the crossing, having crossed there whenever it was needful. In cross-examination of the mother the following appears as the final word:

“Q. And judgment and discretion, everything, above the ordinary girl of fourteen? A. Well, she had awfully good judgment.
“Q. She was nearly fifteen, I believe? A. Yes, sir.
“Q'. And from what you say about her I conclude that you regarded her as superior in judgment, capacity and understanding, to the ordinary girl of fourteen? A. Yes, sir, I did.
“Q. She was a very bright girl? A. Yes, sir.
“Q. And more than ordinarily intelligent? A. Well, she was intelligent.
‘ ‘ Q. Do you know of any trouble that she had at this time on her mind, or anything of the kind? A. No, sir.
“Q. You don’t know, nothing that you know of? A. No, sir, and I expect I would have known it if there had a been.”

There were Kansas statutes read into the record by both sides. So, many decisions of the Supreme Court of that State were offered. All necessary reference thereto will appear in due course in the opinion, if questions dealt with by them are reached as decisive. While from one statute introduced it appears that the common law is recognized in that State, no statute formally adopting it, as of this, that or the other date, was put in.

On such record the question springs: Did defendant’s demurrer to the evidence lie? We are of opinion it did and that the court erred in refusing it, because:

(a) At the doorway of the case we are relieved from all embarrassment on the question whether decedent, on the facts here, was sui juris as a matter of law, and to be held to the same accountability as an adult. Plain- . . * tiff deliberately chose her trial theory on that score and settled it for herself. In the excerpt from her instruction reproduced, it will be observed she put her case to the jury on the concession decedent was negligent. She did not put it to the jury to take into account her youth, judgment, intelligence or maturity and therefrom find her contributory negligence or the lack of it. She took the bits in her own teeth and disposed of it by assuming her daughter guilty as a matter of law, constrained to that course doubtless by the decision of the Kansas City Court of Appeals when the case was up once before. No other instruction asked abates the rigor of the foregoing pronouncement or makes her negligence an issue. By that token, then, there fell out of the case for purposes of the law, and once for all, vexed questions on the heedlessness, the buoyancy, the hopefulness, the inadvertence, the lapses, the daring of youth as elements in ascribing blame to or affixing responsibility for an act. We must treat decedent as an adult; for it is a clear principle of law that a trial theory abides for appellate purposes. That, in the matter of substance, the case heard above must be the very case tried below. [Walker v. Railroad, 193 Mo. l. c. 483 et seq.] Thereto the law accords with the fitness of things and the common sense of the matter.

There was testimony, possibly introduced to show a confused and bewildering situation, to the effect that a switch engine was working on some of the north tracks of the yard and to the east of her a block or half block. But, observe, she had already crossed those tracks. There was some testimony, too, that a block west of the crossing and south of but adjacent to, track No. 1, a ditch was being dug and a ditching engine was standing in this ditch. But, observe, she knew this ditch did not extend to the crossing and if her attention had been diverted west to this ditching engine the same glance would have taken in the passenger train. We lay aside all this testimony as immaterial. This is so, because it was alone competent on the issue of decedent’s negligence. With the concession of her negligence, as here, it fills no office.

Assuming, then, as did plaintiff, that decedent was sui juris, a woman in judgment and guilty of an inexcusable act of negligence leading up> to her death, can there be a recovery on this record?

(b) Whether there was evidence carrying to the jury the issue of defendant’s negligence, we need not discuss. Let the case proceed on the theory, most favorable to plaintiff, viz.: that there was evidence tending to show negligence on the part of defendant in the particulars put to the jury in the instructions quoted. Let us assume for argument’s sake the jury was warranted in finding that issue against defendant. Then, with so much granted, we have a case where a railway company negligently ran a fast passenger train over a public road crossing without any outlook on the north or fireman’s side of the engine whereby those in danger on the north could be seen and warned, and without any warning whatever. We also have a case where a person without looking and without listening, when to listen was to hear and to look was to see (that is, negligently) approached a live railroad track on foot leisurely at an ordinary gait and reached the crossing place at the same instant of time the engine did, and, the two meeting there, the person was instantly killed, as of course. What disposition does the law of negligence make of that case?

(c) At our bar it was argued by all hands that the law of negligence as administered in Kansas applied. In briefs it is not so clear that counsel put all their eggs in that one basket. They apparently dare not put that lone issue to the touch, to win, or lose thereby. If it were material to decide the point, we would do so; but since, on this record, as presently appears, the main question, liability, must be decided the same way whether approached from a Missouri or a Kansas angle, it becomes an immaterial proposition, a mere blind alley or cul de sac, which when explored leads to nothing decisive in this case. The student who investigates with an eye to the storing up of academic learning on the point may consult with profit such cases as Root v. Railroad, 195 Mo. 348; Mathieson v. Railroad, 219 Mo. 542; Yost v. Railroad, 245 Mo. 219; Newlin v. Railroad, 222 Mo. 375; Fogarty v. Transfer Co., 180 Mo. 490.

(d) In this State, as everywhere, it has always been a general rule of law that, given the negligence of a defendant and an injury, then the concurrent contributory negligence' of the injured party defeats the recovery. Such injury is the product of the joint fault of the two; both do it, and the law affords no remedy. It leaves the injured party to lie in the bed he helped make for himself.

(1) For reasons of humanity, however, there has been allowed an exception to that general rule, as well established as the rule itself. So that the law in this jurisdiction also is that when the negligence of the injured party has put him in peril so distant from an oncoming car or locomotive that those operating it can by warning (or by stopping when possible and necessary) avoid injury to such person, after such operatives discover the peril (or, where a duty to look arises, might have discovered the peril) then liability for injury springs. On such hypothesis the act of negligence of the injured party is not deemed by the law so far forth concurrent as to defeat recovery, but the negligence of defendant is deemed the proximate cause of the injury, and, hence, actionable.

This is one phase of what is called by our courts the humanity doctrine. In some jurisdictions it is called the last-chance rule or last-clear-chance rule. In some, the same result is reached under the doctrine of comparative negligence. In some, the same result is reached by a benignant, liberal (and flexible) application of the maxim, Causa próxima, non remota, spectator. And in some cases, to work out justice, the concepts of wilfullness and wantonness have been levied on to avoid the effect of contributory negligence, the universal rule being that contributory negligence is no defense to a wanton or wilful act. We cite only one case. [Murphy v. Railroad, 228 Mo. l. c. 79 et seq.] From one discern all.

(2) But running parallel with a line of cases on all-fours with the Murphy case, supra, is another line of railroad negligence cases announcing this proposition: Granting defendant’s, negligence in outlook, signals, slacking or stopping, yet where the injured party who is sui juris negligently moves from a place of safety to a place of danger so close before the engine or car that by ordinary care his injury cannot be averted, then there is no room for the play of the humanity doctrine: contra, the doctrine of concurrent negligence is left to operate as a defense in full vigor and rigor. [Watson v. Railroad, 133 Mo. l. c. 251; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Dyrcz v. Railroad, 238 Mo. l. c. 47; Burge v. Railroad, 244 Mo. 76; Sites v. Knott, 197 Mo. l. c. 709 et seq.; McGee v. Railroad, 214 Mo. 530; Walker v. Railroad, 193 Mo. l. c. 479 et seq.; Rollison v. Railroad, 252 Mo. 525; Stotler v. Railroad, 204 Mo. 619; Laun v. Railroad, 216 Mo. 563; Bennett v. Railroad, 242 Mo. 125.]

The doctrine just announced sustains the demurrer from the Missouri viewpoint, unless the proposition we are about to discuss saves the case.

(3) The duty to use care to avoid injury on the hypothesis discussed in paragraph 2, arises only on discovery of peril, or on negligence in discovering it when there is a duty to keep an outlook and make discovery of the peril. In either hypothesis it is essential to note that there must be peril, a danger zone. To illustrate, one standing on the track at a crossing is in the danger zone. One, a child, non sui juris, approaching the track and able to reach it before the engine, is in the danger zone by virtue of being non sui juris. One driving on a track is in the danger zone when his horses approach so close, or at such a gait, as to show a present intention to cross. But a person sui juris approaching a railroad track at a crossing, at an ordinary gait on foot at right angles to the track or angling toward the engine and in complete control of his own movement, is not in the danger zone until he takes the last few fatal steps, or, oblivious to his danger, does such things as fairly indicate a present intention to take them. The danger zone on such hypothesis is narrow indeed — a step or two or three at most. We have uniformly ruled that the engineer seeing such a person approaching the track on foot in an ordinary walk may act on the presumption the person will stop- before stepping thereon immediately before his engine. He has right- to rely in the first instance on such person looking and listening, and, where looking is seeing and listening is hearing, he has a right to presume such person knows the peril and will stop. [See authorities supra.]

The question, then, shifts to this.; Was there anything in the mere fact that decedent, woman fashion, was holding her hat rim down in a wind and had her head bent a little down that takes the case out of the general rule above discussed, and shows that she obviously intended to walk to her death? We think not. The train noise carried with the wind and fully reached the fatal spot. The lowered hat rim in front did not affect her hearing, nor would it obviously affect her seeing when a mere glance, a twist of the head, would take in the train. A friendly witness, within hailing distance, saw her actions and the train and failed to warn her. Why? Because he did not think she would take the last step. It is not amiss to let him tell that part of his story, thus:

“Q. Did you call to her to stop? A. No, I didn’t know she was going on the track.
“Q1. Why didn’t you call her to stop? A. Why, I didn’t know she was going on the track.
“Q. Did you think she was going on the track? A. Well, a person would naturally suppose she wouldn’t.
“Q. You saw the train? A. Yes, I saw the train.
“Q. You suppose she saw it, do you? A. No, I don’t think she did.
“Q. Did you then suppose she saw it? A. I supposed she heard it coming, yes.”

We think it sound doctrine in this jurisdiction, that there is nothing in this case to relieve it from the general rule that one who is about to go on a railroad track owes it to himself to look and listen, Self-preservation is nature’s first law and nature’s imposed duty. Every man lives, moves and has his being within that law and duty. He cannot escape therefrom if he would and ought not if he could. Not to obey that law and use one’s own Grod-given senses in as primal a duty is tantamount to casting the whole burden of saving one’s life or limb on the other party. Why should that be done? We cannot well write the law to be that everyone owes to A the duty to preserve A’s life or limb, except A himself.

(c) We come next to consider the doctrine of the Supreme Court of Kansas in the foregoing particulars. The doctrine of that learned court is much like our own in negligence law. Where the two courts differ on some phase of the humanity rule, the Kansas doctrine lends, we think, less countenance to recovery than our own. We shall not enter upon an exposition of the Kansas doctrine; but content ourselves with the pronouncement just made. The authorities supporting it are abundant and as uniform as possibly can be where courts deal with a subject-matter of such infinite vari&ty of detail as the law of negligence. [Dyerson v. Railroad, 74 Kan. 528; Coleman v. Railroad, 87 Kan. 190; Dunlap v. Railroad, 87 Kan. 197; Marple v. Railroad, 85 Kan. 699; Beech v. Railroad, 85 Kan. 90; Jones v. Railroad, 85 Kan. 313.]

"When rightly understood and applied there is nothing in the decisions of that court, to which plaintiff cites us, at all modifying the reasoning and conclusions of the cases just cited. We will not stop to analyze them.

We must hold, then, that if the case at bar be ruled by Missouri doctrine or by Kansas doctrine, matters not a whit. To drop into the phrase of the logicians: There is a dilemma and plaintiff, impaled on either horn, cannot escape between the horns.

(f) It is argued that the decision of the Kansas City Court of Appeals on a former appeal (151 Mo. App. 364) is res adjudicada on the question whether there was a case for the jury. If the whole case did not come here on the present appeal, but some of it was left behind, there would be substance in that contention, as to the part left behind. In Viertel v. Viertel, 212 Mo. 562, a divorce suit where the right to a divorce was finally settled on appeal by that court, but the question of alimony was open and from a final judgment below on that issue the appeal came here, we held the judgment of that court on the divorce itself res adjudicata. In this appeal the whole case is here, and, while opinions of our esteemed brethren of that court are persuasive, and generally followed by us, they cannot bind this court on a new appeal in the same ease on either the doctrine of res adjudicata, or the law of the case. [Hennessy v. Bavarian Brew. Co., 145 Mo. l. c. 115; Paddock v. Railroad, 155 Mo. l. c. 534.] We are not willing to follow the pronouncement made by the Kansas City Court of Appeals on the demurrer to the evidence then held in judgment.

Besides all that, the evidence was not the same at both trials. We have now the testimony of the engineer and fireman which that court did not have. The demurrer seeks and searches all the evidence.

The point is ruled against plaintiff.

The conclusions reached make rulings on other interesting questions bristling in briefs, not worth while. A safe rule is: Never do to-day in an instant case what one might better do to-morrow in some other case.

Let the judgment be reversed.

Woodson, Graves, Walker and Faris, JJ., concur; Brown, J., concurs in the result; Bond, J., dissents.


author: BOND, J.

text:
    LUTHER S. SCHOOLER, ALTIE MIRA ANN YOAKUM and MARTHA ADALINE COWSERT, Appellants, v. WILLIAM NATHANIEL SCHOOLER et al.
    In Banc,
    May 20, 1914.
    1. CONVEYANCE: Delivery and Acceptance of Deed. It Is not essential to the delivery of a deed or its acceptance as such by the grantee, that either of those things should be shown to have been done in express terms or by direct evidence. •Either or both may be established by indirect or inferential evidence.
    2. -: -: Presumption: Voluntary Settlement. The presumption of the delivery of a deed and of its acceptance is stronger in a case of voluntary settlement than in a case of bargain and sale.
    3. -: Manual Delivery of Deed. To make a delivery of a deed, it is not' necessary that it be actually handed over to the grantee, or to any one for him. It may be effected by words without acts, or by both words and acts.
    4. -: -: Acts and Words Amounting to Delivery: Possession of Lands. An old man, the owner of separate tracts of land, went to a lawyer’s office and had a deed drawn conveying one tract to a daughter for life with remainder to her sister’s children, and another drawn conveying another tract to said sister with remainder to her children. The lawyer inclosed the deeds in separate envelopes, and inscribed on each “Deed and Abstract From” the grantor “To” the daughter named. As he was leaving the office the grantor remarked that he was not going to turn ov.er the deeds to his daughters at once, whereupon the lawyer advised him that in order to make the deeds effective they must be delivered to the grantees, or if they were placed in the hands of a third party for the grantees such party should be notified that he (the grantor) had no further control over them and that they were the deeds of his daughters. The grantor took them to the cashier of a bank in which he kept a current account, and handed them to him, who plac.ed them in a safety box belonging to the bank, which was generally used for keeping papers left at the bank. The grantor at the time made a statement concerning the deeds, but the cashier testified he could not recollect either the words or its substance. The grantor returned home and apportioned the two tracts of land to his daughters, and they and their husbands took possession and thereafter until the time of the grantor’s death, three years later, they held possession without dispute, fenced the land, cultivated it, received the income and paid the taxes, and caused it to be listed with the assessor as the land of the daughters, respectively, and when the assessor came to the grantor he listed as his land only the portion that had not been conveyed to the daughters, and asked the assessor if he had gotten a statement “from the girls of their property,” and suggested to the assessor that he read the description as given by them, and when that was done he said the description was correct. There was testimony that after the deeds were made he stated he had given the land to his daughters in order to make them equal to their brother, -and that he had made the gifts in remainder to the grandchildren because he wanted to do something for them in consideration for kind attention to him. After his death the daughters called at the bank and asked that the deeds be turned over to them, which was done, thereby showing that they had been informed by their father that the deeds had been left with the cashier for them. Upon the cashier’s request the deeds were returned to him. Held, that there was a technical delivery of the deeds to the grantees by the bank, and such delivery related back to the time they were left with the cashier, and therefore the grantor did not die intestate as to such lands. [LAMM, C. X, and WOODSON and WALKER, XT., dissenting.]
    5. -: Acceptance: By Demanding Deeds. When the grantees named in the deeds applied to the bank in the custody of whose cashier the grantor had placed them, and demanded that they be delivered to them, acceptance was complete unless the demand was made in ignorance of the quality of the estate conveyed by the deeds.
    6. -: -: -: Refusal to Exonerate One’s Self from Rational Inference. When a party to a civil action has full power to give testimony which will exonerate himself from a rational inference of inequitable action arising out of his own conduct, and refused to do so, the conclusion will be drawn that the adverse deduction from the facts was true and could not have been disproved. , So if the two daughters, named as grantees of a life estate in the deeds deposited by the grantor with the cashier of a bank, wished to escape the rational conclusion that they knew the quality of estate conveyed and that such knowledge is to be drawn from the fact that they applied to the bank for and received the deeds, they should have testified, and denied that they had previously known the deeds conveyed to them only a life estate, and that upon the discovery of that fact they voluntarily returned them, since it was a matter concerning which they were peculiarly qualified to speak.
    Appeal from Ray Circuit Court . — Hon. Francis H. Trimble, Judge.
    Affirmed.

      Farris & Divelbiss for appellants.
    (1) Without delivery, a deed passes no title. Chambers v. Chambers, 127 S. W. (Mo.) 8G. (2) While a valid delivery may be made by delivering a deed to a stranger with instructions to deliver it to the grantee, still to make such delivery effectual, it must affirmatively appear that the grantor at the time he delivered the deed to the depositary, parted with all dominion and control over it, and relinquished all right to alter or recall it, intending at the time to pass the title as a present transfer. Hammershlougli v. Cheatham, 84 Mo. 13; Sneathen v. Sneathen, 104 Mo. 201; White v. Pollock, 117 Mo. 472; In re Soulard’s Estate, 141 Mo. 642; Powell v. Banks, 146 Mo. 620; Mudd v. Dillon, 166 Mo. 110; McNear v. Williamson, 166 Mo. 358 ; Peters v. Berkheimer, 184 Mo. 393; Lange v. Cullinan, 205 111. 365. . (3) The question whether the grantor parted with all dominion and control over the deed at the time of the delivery to the third person is to be determined by reference to his intention, which is to be ascertained from the facts and circumstances attending the execution of the deed and its delivery to the third person. Lange v. Cullinan, 205 111. 365'. (4) Subsequent acts and declarations of the grantor showing an intent or desire to give the land to the grantee do not establish that he did give it to them by the execution and delivery of a deed of conveyance, without which no title could pass. Walls v. Ritter, 180 111. 616; Lange v. Cullinan,. 205 111. 365. (5) The deed must have been put into the hands of the third person under such circumstances as to make it the duty of the latter to refuse to surrender it to the grantor, if he should afterwards call for it. Mudd v. Dillon, 166 Mo. 110; Osborne v. Eslinger, 155 Ind. 351; Emmons v. Harding, 162 Ind. 154. (6) 'If the grantor deposits the deed with a third party as his agent, friend or bailee, or simply for safe keeping, there is no delivery. Barrows v. Barrows, 138 111. 649 ; Osborne v. Eslinger, 155 Ind. 351. (7) The mere leaving of a deed by the grantor .with a third person without instructions as> to what he desires to be done with it, does not amount to a delivery. The law does not presume, when a deed is handed to a third person, that it is done with the intention of passing the title to the grantee. In order to make such act a delivery, the intention of the grantor must be expressed at the time in some unmistakable manner. Fitzpatrick v. Brigman, 130i Ala. 450; Trask v. Trask, 90 Iowa, 318; Grilly v. Atkins, 78 Conn. 380; MeElroy v. Hiner, 133 111. 156. (8) To make the delivery to a stranger effectual, the intention with which the delivery was made must be. expressed at the time. Co. Lit. 36a; Touch. 57; Tied-man, Real Prop. (2 Ed.), sec. 814; 3 Wash. Real Prop. (5 Ed.), p. 314, sec. 582; 1 D'ev. on Deeds (2 Ed.), sec. 289; Jackson v. Rowland, 6 Wend. 666 ; Hannah v. Swarner, 8 Watts, 9; Hulick v. Scovil, 4 Gilm. 159; MeElroy v. Hiner, 133 111. 156; Osborne v. Eslinger, 155 Ind. 351; Trask V. Trask, 90 Iowa, 318; Grilly v. Atkins, 78 Conn. 380 ; Fitzpatrick v. Brigham, 130 Ala. 450. (9) To be effectual, not only must the deed be delivered unconditionally and without reserve by the grantor to the third party for the use of the grantee, but the grantee must also accept it. The latter act is equally as essential as the former. Hall v. Hall, 107 Mo. 101; Powell v. Banks, 146 Mo. 620; McCune v. Goodwillie, 204 Mo. 306; McNear v. Williamson, 166 Mo. 358; Miller v. McCaleb, 208 Mo. 562; Emmons v. Harding, 162 Ind. 154. (10) Tbe grantee must have accepted the deed in the condition in which it was delivered to the third party, and must have accepted and intended to take the title, as indicated in the deed. Powell v. Banks, 146 Mo. 620; McNear v. Williamson, 166 Mo. 367. (11) The presumption of acceptance is a rebuttable one. Brownlow v. Wollard, 61 Mo. App. 131. (12) Presumption of acceptance must give way, when, as in this case, the grantee refuses to accept the conveyance. McCune v. Goodwillie, 204 Mo. 306; Miller v. McCaleb, 208 Mo. 562; Brown-low v. Wollard, 61 Mo. App. 131; Wilsey v. Dennis, 44 Barb. 359; Owings v. Tucker, 90 Ky. 297.
    Garner, Clark & Garner for respondents.
    The only question in this case is whether there was a delivery of the deed by Nathan PI. Schooler to Altie Mira Ann Yoakum. Ramsey v. Otis, 133 Mo. 95; Monroe ,v. Bowles, 54 La. 865; Stanford v. Stanford, 97 Mo. 233; Sneathen v. Sneathen, 104 Mo. 201. “There is no particular form necessary to effect a delivery. The law presumes much more in favor of delivery in voluntary settlements in favor of a child, wife, or near relative.” Ramsey v. Otis, 133 Mo. 95.
    STATEMENT.
    The two daughters and son and only heirs of Nathaniel A. Schooler, deceased, sued two of his grandchildren, being the children of the plaintiff Martha Cowsert, to quiet title to about 85> acres' of land. The petition contained a second count (dismissed on the trial) which sought to set aside and annul a deed conveying the land in question to another daughter of Nathaniel A. Schooler, plaintiff Altie Yoakum, for life, with remainder in fee to two of the children of the other daughter, on the ground that it had not been delivered by the grantor, Nathaniel A. Schooler, Sr., in his life time. Mrs. Yoakum, the life tenant in this deed, though married, was childless. Her sister, 'Mrs. Cowsert, the life tenant in the other deed, was married, and the two defendants to this suit were born of her first marriage and were remaindermen in the deed to Mrs. Yoakum.
    The defendants pleaded title under said deed in their answer and prayed that the interest and estate of the parties be adjudged according to the terms of the deed. A jury was waived and the case submitted to the courts upon the evidence which disclosed that Nathaniel A. Schooler, Sr., was the father of the three plaintiffs; that in the fall of 1905, in company with the husband of one of his daughters, he called upon a firm of lawyers in Richmond, Missouri, and instructed them to prepare a deed and abstract of title to the land in dispute in this case, to his daughter Mrs. Yoakum, for life, with remainder in fee to the two children of his daughter Mrs. Cowsert, who were born of her first marriage, and a similar deed, to other, land of about the same quantity, to his daughter, Mrs. Cowsert, with remainder in fee to her children, three in number, born of both marriages; that as to the land embraced in the last deed these plaintiffs have brought against the remaindermen a similar action to the present; that in accordance to such instructions the two deeds were prepared; that on the 23rd of October, 1905, the said Schooler returned to the office of his attorneys and signed and acknowledged both deeds; that each was then enclosed in a large envelope which was sealed up and delivered to him with a superscription on each, to-wit: “Deed and Abstract from Nathaniel A. Schooler to [naming the grantee]”; that he remarked on leaving the office that he was “not going to turn over the deeds to his daughters at once,” whereupon his attorney advised him that in order to make the deeds effective they must be delivered to the grantees, or if they were placed in the hands of a third party for the grantees, snch party should he notified, that he, Schooler, had no further control of them, and that they were the deeds of his daughters ; thereupon, Nathaniel A. Schooler took the deeds and handed them to the cashier of the banking house who placed them in a safety box belonging to the bank, and which was generally used for keeping papers left there; it was not the private box of Mr. Schooler.
    At the time the deeds were put in the hands of the cashier a statement in regard to them was made by Mr. Schooler, but the cashier testified that he could not recollect either the words or the substance of it. On that point the following questions were put to him by the court to which he answered as- follows:
    “By the Court, continuing: Q. And you don’t recollect a solitary thing he said? A. No, sir; he handed me the papers, but I don’t recollect what he said. Q. He made some statement to you, but you don’t know what it was? A. No, sir; we get so many of these papers that I did not impress my mind what he said. Q. You were not the agent for Mr. Schooler for any purpose, were you? A. No.”
    Mr. Schooler then went to his home about twelve miles- from the town, and thereafter the two tracts of land described in the two deeds made by'him to his daughters, were taken possession of by them or by their husbands on their behalf, and were fenced off from each other and also fenced off from the remainder of their father’s land, which consisted of about 113 acres. For the years following each of the said daughters caused the property described in their respective deeds to be assessed in their own names and the taxes were paid, and the crops grown thereon were sold by the daughters, and the money received by them or their husbands.
    Their father died in December, 1908-, whereupon his two daughters together called upon the cashier of the bank where their deeds had been left, and, he being absent, they requested Ms assistant to deliver the deeds to them, which was done. During the afternoon of the same day the cashier of the bank, being advised of what was done, secured the return of the deeds to himself.
    The evidence goes to show that when the assessor came out to the farm of Nathaniel A. Schooler, he returned for assessment only that portion of his land wMch he had not conveyed to his daughters, and asked the assessor if he had gotten the statement from “the girls of their property,” and suggested that he, the assessor, recite the calls of the land given to him by the daughters, which was done, and which Nathaniel A. Schooler said-was correct. There was other testimony that during his life time he had stated that he had made the gift of land to his daughters in order to make them equal to their brother, for whom he had been compelled to pay fines; and that he made the gifts of the remainder under the present deed to two of his grandchildren, because he wanted to do something for them in consideration for what they had done for Mm, by remaining at his- house until they reached their majority, after their mother had left her first husband, who was their father; that he spoke to certain persons about these gifts of land to his two daughters, and gave his reasons, that he caused a house to be built on one of the tracts and said that he intended to give it to the daughter to whom the land had been conveyed; that he said the deeds ‘ ‘ ought to be handed over, but did not say when they would be handed over;” that plaintiff, Mrs. Cowsert, stated that she knew the deed to her sister had been “fixed” by her father so that her sister’s husband could not spend it.
    Shortly after the two daughters returned the deeds to the cashier of the bank, they and their brother joined in the present action. After taldng the case under advisement, the learned judge made a finding in favor of the grandcMldren which sustained the life estate to plaintiff, Mrs. Yoakum, with a remainder in fee to defendants. From a judgment in accordance, the mother of the defendants, and her sister and brother, have prosecuted this appeal.
   OPINION.

I.

BOND, J.

(After stating the facts as above.) — In this case both parties have a common source of title, the father of the plaintiffs and the grandfather of the defendants. Unless, therefore, the defendants are able to show a valid grant of the remainder in the particular portions of their grandfather’s land, described in the deed involved in this case, they must fail in their defense, and that property, as well as the remaining estate of their grandfather, will be inherited by the plaintiffs, share and share alike. The only assault made by the plaintiffs upon the deed in this case, is that it was not delivered to plaintiff Mm, Yoakum, in the life time of her father, the grantor. The motive of the grantor to make some provision by this deed for the services of his two grandchildren (the two children of Mrs. Cowsert by her first marriage) who remained with the grandfather after her separation from her first husband, is not questioned, neither is it doubted that the provisions of the deed were in exact accordance with the instructions given by the grantor to his attorneys who prepared it. I he only contention of the plaintiffs is the technical one of nondelivery.

The necessity of the delivery of a deed and its acceptance as such by the grantee in order to valid ate the conveyance of land is familiar law. [Miller v. McCaleb, 208 Mo. l. c. 578.] But it is not essential to the delivery of a deed or its. acceptance, that either of these facts should be shown by express terms or by direct evidence. Either or both of them may be established by indirect or inferential evidence. [Rumsey v. Otis, 133 Mo. l. c. 95; Sneathen v. Sneathen, 104 Mo. 201; Standiford v. Standiford, 97 Mo. 231; Miller v. Lullman, 81 Mo. l. c. 316; Tobin v. Bass, 85 Mo. 654; McNear v. Williamson, 166 Mo. l. c. 367.]

It is also, the law that the presumption of the delivery of a deed, or its acceptance in ease of voluntary settlement,'is stronger than in a case of bargain and sale. [Rumsey v. Otis, 133 Mo. l. c. 95; Hamilton v. Armstrong, 120 Mo. 597; Crowder v. Searcy, 103 Mo. 97; Cannon v. Cannon, 26 N. J. Eq. 316; Williams v. Williams, 148 Ill. l. c. 430.]

It is. well stated in Cannon v. Cannon, supra, l. c. 319: “To make delivery of a deed, it is not necessary it should be actually handed over to the grantee, or to any person for him. It may be effected by words without acts, or . . . by both acts and words. Indeed, it may be made though the deed remains in the custody of the grantor.”

Tested by these principles of law, do the facts in this case show that this deed, made by Nathaniel A. Schooler to his daughter Mrs. Yoakum, conveying a life estate to her with the remainder to the adult children of her sister Mrs. Cowsert, was delivered to and accepted by the life tenant actually or by relation when the deed was turned over to the cashier of the bank? We think there is no escape from an affirmative answer to this question. The undisputed facts show that when the grantor in the deed decided to make the conveyance, as therein expressed, he went to the office of his attorney for that purpose, and took the husband of one of his daughters with him then, or on a subsequent visit, to receive the deeds after they had been prepared. It is certain that the grantor and his attorney, and inferably the accompanying husband, knew What the deeds contained, and that they were signed and acknowledged, and securely sealed in separate envelpes, upon each of which was a written statement or description showing the fact of the conveyance and the party to whom it was made. With these in his hands the grantor went to the cashier of a bank where he kept a current account, and placed the deeds in the hands of the cashier, stating at the time, what should be done with them. Unfortunately, the cashier when called to testify, was unable to recall the directions then given to him, hence, as far as regards the matters between him and Mr. Schooler, all that is available is the fact that the sealed deeds were delivered to him containing on each a written statement disclosing by whom, they were made and to whom they belonged. The cashier did testify, however, that he was not the agent of the grantor for any purpose. But the grantor went home and apportioned to each of his daughters the specific tracts of land wherein he had conveyed to them a life estate, and they and their husbands took possession and. enclosed the tracts by fencing them off from each other, and from the remaining lands of their father. For three years thereafter, each of the daughters asserted ownership of the particular tract- which had been put in her possession by listing it for taxation, and with the aid of her husband by cultivating it and by selling the crops and receiving the money.

Their father is shown to have admitted to the assessor that the property conveyed to his daughters was correctly listed by them, and to have completely refrained from any claim of interest thereto in himself. That he notified his daughters where his deeds had been left, is shown by the fact that both of them at his death applied to, and received them from, the bank where they had been left. It would have been impossible without some previous communication from their father, for the daughters to have divined that the deeds to the land, into the actual possession of which they had been placed, had been left for them with the cashier of the hank. The inference, therefore, is not only natural but irresistible that the two daughters had been told by their father that the deeds made to them had been put in the bank for safe-keeping and delivery. That he made no secret of his purpose to turn over the deeds as well as the property itself to his daughters,- is also shown by his statements to other persons of the reasons that actuated his conveyance, his desire to equalize his daughters with their brother, and his intention to repay his two grandchildren (born of the first marriage of one of his daughters) for their care, attention, and services to himself, and his further statement that the deeds “ought to have been turned over to them.” It is also impossible to draw the conclusions that the two daughters were unaware of the nature of the estate given to them. For on that subject the grantor was equally open, having taken one of their husbands with him at the time the deeds were prepared, or at the time they were directed to be prepared, and one of his daughters, having admitted her knowledge of the nature of the conveyance to her sister, as was shown by the testimony of the persons to whom she made the statement. The facts and circumstances surrounding the transaction exclude any other view, than that the matter was fully understood by the grantor and the two grantees of the life estate, and-point unerringly to the conclusion that the statement which the cashier doesn’t recollect, made by the grantor, was in substance, that the deeds handed over to him should be delivered to the parties whose names were inscribed upon the package as owners thereof. In view of the fact that these owners did apply for them and did get them, we think there was a technical delivery to them which under settled principles of law related back to the time the deeds were left with the cashier, and, therefore, involved a conveyance as if the whole matter had been done in the life time of the grantor. On this point it has been conclusively said by Judge Black speaking for this court: “A deed delivered by the grantor to a third person to be delivered to the grantee, and by such third person delivered to the grantee, will constitute a good delivery, though the grantor is dead at the date of the last delivery; for the delivery takes effect by relation as of the date when first made to the third person. In such cases it .should appear that the grantor parted with all dominion and control over the instrument, intending it to take effect and pass the title as a present transfer. This intention may be manifested by acts, or by words, or by both words and acts.” [Sneathen v. Sneathen, 104 Mo. l. c. 209; 2 Black. Comm., 307; 4 Kent, sec. 67, pp. 454-456.]

The learned counsel for appellants- cite McNear v. Williamson, supra. That case is in perfect accord with the doctrine here announced.. Besides, it was radically different as to the facts in judgment; for there the land was not delivered, while in this case the possession was turned over to the grantee immediately after the making of the deeds. Said the court in that ease: “It is not claimed that there was any delivery of the premises to the plaintiff on the execution of the deed or that any was demanded then or immediately thereafter. The conduct of the parties in that respect also was inconsistent with the idea that there had been a real sale.” [166 Mo. l. c. 369.]

The learned counsel for appellants also insist that there was not sufficient proof of acceptance of the deeds by the life tenant. We cannot agree with that view, for reasons heretofore stated. Besides, when the two daughters demanded their deeds the act of acceptance was complete unless that demand was made in ignorance of the quality of the estate conveyed in the deeds. Neither of these daughters submitted themselves to an examination on this point, although it was a matter peculiarly within their knowledge. The principle is plain that when a party in a civil cause has full power to give testimony exonerating himself from a rational inference of inequitable action arising out of his own conduct, and refuses to do so, then the conclusion will be drawn that the adverse deduction from the facts was true and could not have been disproved. So in this case if the two plaintiff daughters could have truthfully stated that they were unaware of the estate granted them and that they voluntarily returned the deeds when they discovered the exact nature of the estate conveyed, then their rights as heirs at law would have been unaffected as to the property described in the deeds. This was not done, and our conclusion is that they took the deeds with substantial knowledge of their contents and intended at the time to accept them. [16 Cyc. 1064, par. G; Werner v. Litzsinger, 45 Mo. App. l. c. 108.]

The judgment of the trial court is correct and is affirmed.

Graves, Brown and Faris, JJ., concur; Lamm, C. J., and Woodson and Walker, JJ., dissent.


author: BROWN, C. PEE CURIAM. —

text:
    MARTHA ADALINE COWSERT et al., Appellants, v. GEORGE W. SCHOOLER et al.
    In Banc,
    May 20, 1914.
    The facts being the same, this case is decided in accordance with the case of Schooler v. Schooler, ante, p. 83, with which it was tried.
    Appeal from Ray Circuit Court. — How. Francis II. . Trimble, Judge.
    Affirmed.

      Farris & Divelbiss for appellants.

      Garner, Clark & Garner for respondents.
   BROWN, C.

— This case was tried in the circuit court with the case of Luther S. Schooler et al. v. William N. Schooler et al., decided by us at this term. [Ante, p. 83.] One trial was made to answer for both cases. The facts, which are the same in each, were fairly and fully stated by Bond, J., in that case, and I can do no better than to express my approval of the result reached by him. I find it unnecessary, however, to consider the views expressed by him in the last paragraph of the opinion, for the reason that the failure of Mrs. Cowsert to offer herself as a witness has not influenced me in my conclusion.

The judgment is affirmed.

PEE CURIAM. —

This case coming from Division Two into Banc on a dissent on rehearing, the foregoing opinion of Brown, C., is adopted as the opinion of the court.

Graves, Brown, Bond and Baris, JJ., concur; Lamm, G. J., Woodson and Walker, JJ., dissent.


author: WOODSON, J. —

text:
    ABRAM ROSENBERGER v. PACIFIC EXPRESS COMPANY, Appellant.
    In Banc,
    May 20, 1914.
    1. CONTRACT: Annulled by Law Making Performance Illegal. Where a party agrees to perform an act lawful at the time the contract is made, and thereafter the Legislature enacts a valid law making the performance of that act illegal, the .contract of performance is thereby annulled. But that rule applies only to contracts and statutes relating to matters embraced within the police powers of the State.
    2. -: Interstate Commerce: C. O. D. Shipment. The duty of a common carrier to receive, transport and deliver’ articles of commerce is imposed by law, subject, of course, to reasonable limitations and regulations, and not by contract; and for the performance of that duty, it is. entitled to charge a reasonable sum. But the C. O. D. feature of a shipment is regulated by contract, and the carrier is under no legal obligation, in the absence of some statute, to collect the purchase price of the goods carried, unless he contracts to do so. For the collection and return of the purchase price he may charge and collect a sum in addition to the carriage charges, and may hold the goods a reasonable time after they have reached their destination before delivering them to the consignee (unless a different time is named in the contract); but neither the withholding or storage of the goods until the consignee pays for them nor ,the collection of the purchase price has anything to do with either state or interstate commerce, and no valid statute of the State in which the consignee resides, making a C. O. D. delivery illegal, can interfere with or stifle interstate commerce. The storage of the goods and the collection of the purchase price are governed by the laws of the State in which they are made.
    3. -: -: -: Interstate C. O. D. Shipment of Liquor: Prohibited By Law of State: Conversion. A law of Texas, enacted after a C. O. D. contract of shipment of liquor to a consignee in that State was accepted in Missouri, but effective before the delivery of the goods to the consignee, which imposed an occupation tax of $5000 a year on all persons or corporations “handling liquors C. O. D.” at each place maintained for that purpose, was a valid police regulation, and a legal excuse for the common carrier’s refusal to deliver the liquors and collect the purchase price thereof, and for such refusal the carrier is not liable as for a conversion of the liquors — the shipment having been made to the point of destination, and the only breach of duty being a breach of the C. O. D. contract to deliver the liquor and collect the purchase price.
    4. -: Interstate C. O. D. Shipment of Liquor: Breach: Conversion: Damages. Where an express company, after a statute of the State of Texas making illegal a C. O. D. shipment of liquor to any place in that State was effective, but enacted prior to but not in force when the C. O. D. contract ■ for the shipment of the liquor was made, offered to return the liquors to the consignor upon the payment of the return carriage charges, and still holds the liquors and so offers to return them, it is not liable as for conversion, but, if at all, only for damages for a breach of the C. O. D. contract.
    Appeal from Jackson Circnit Court. — Hon,'Walter A. Powell, Judge,
    Reversed.

      Lathrop, Morrow, Fox & Moore, Cyrus Crane and Watson, Watson é Alford for appellant.
    (1) There was no common law duty or obligation enjoined by law upon defendants to carry plaintiff’s liquors on the C. O. D. plan. McFichols v. Express Co., 12 Mo. App. 401; Fowler Com. Co. v. Railroad, 98 Mo. App. 210; Danciger v. Express Co., 154 Fed. 379. (2) The act of the Texas legislature, passed February 12, 1907, completely released defendants from their obligations to perform1 the C. O. D'. contract, inasmuch as performance was rendered impossible by that act. Sauner v. Phoenix Ins. Co., 41 Mo. App. 480; 9 Cyc. Law & Proc. 630; Church v. Few York, 5 Cow. (N. Y.) 538; Cordes v. Miller, 39 Mich. 584; Stone v. Mississippi, 101 U. S. 814; Am. Merc. Exchange v. Blunt, 66 Atl. 212; School Dist. v. Howard, 98 F. W. 666 ; Wood v. Association, 102 F. W. 412; 2 Parsons, on Contracts, p. 674; Hammon on Contracts, sec. 210; p.. 345-346; Craddock v. Wells-Fargo, 125 S. W. 59; Heart v. Brewing Co., 113 S. W. 364. (3) The Texas statute is a constitutional and valid enactment. Craddock v. Wells F'argo, 125 S. W. 59. In this case the very act under consideration is held to be valid as a police regulation. Texas has repeatedly held that such restrictions, prohibitions or burdens imposed upon the liquor traffic are constitutional and valid. Railway Co. v. State, 79' Tex. 269 ; Higgins v. Rinker, 47 Tex. 401. (4) This Texas act was a complete defense. The trial court erred in not giving full faith and credit to this valid 'enactment of a sister state. In so doing, the court violated section 1, article 4, of the Constitution of the United States. (5) Defendants were not obliged to first test out the constitutionality of this act, but had a right to treat it as valid and comply with its provisions and refuse to carry out the C. O. D. ■ contracts, and in thus acting they will be protected by the courts. State v. Douglass, 50 Mo. 597; Craddock v. Wells Fargo, 125 S. W. 59; McAlister v. Bailroad, 74 Mo. 363; Bailroad v. Goke, 51 Ind. 183; Bailway v. Heyman, 45' S. E. (Ga.) 491. This rule has been repeatedly announced and followed in Texas where this controversy arose. Sessums v. Boggs, 34 Tex. 348; Boggs v. Howard, 40- Tex. 157; Black v. Epperson, 40 Tex. 185; Donaldson v. State, 15 Tex. App. 28. The presumption was that the act was constitutional until the contrary was made to ajjpear. State v. Bailway, 48 Mo. 468'; Phillips v. Bail-road, 86' Mo. 540; Bailway v. Shambaugh, 106 Mo. 557; State ex rel. v. Wofford, 121 Mo. 61. (6) The plaintiff abandoned the property in Texas. There was no conversion because the express company returned the property to the point of origin of the shipment. The law1 prohibited defendants from “throwing off,” remitting or rebating the return charges. Craddock v. Wells Fargo, 125 S. W. 59; Interstate Commerce Act and Hepburn Act amending same, section 2 (3 Fed. Statutes, Annotated, page 813, 34 St. at Large, 379). (7) Inasmuch as the C. O. D. feature of the shipments was no part of the carrier’s common law duties, but rested solely in contract, conversion would not be, under any circumstances, the proper remedy for1 plaintiff to pursue. Nanson v. Jacob, 93 Mo. 331; Shewalter v. Bailroad, 84 Mo. App. 599; Niemetx v. Association, 5' Mo. App. 63-; Fowler Com. Co. v. Bailway, 98 Mo. App. 210; Wernick v. Bailroad, 131 Mo. App. 37; Hutchison on Carriers, sec. 774.

      A. F. Smith and Rozselle, Vineyard é Thacher for respondent; Frank A. Boys of counsel.
    (1) The refusal of the defendants to deliver the goods in accordance with the terms of the contract was a conversion thereof; the Texas statute by virtue of which defendants attempt to excuse their refusal to deliver such goods as ordered, was invalid and therefore was no justification of such refusal. The goods in question were articles of interstate commerce. Express Oo. v. Kentucky, 206' U. S. 129; Express Co. v. Iowa, 196 U. S. 133; Heyman v. Express Co., 203 U. S. 270 ; Caldwell v. North Carolina, 187 U. S. 621. The Texas statute was an attempt to lay a burden on such interstate commerce, and was, therefore, in contravention of section 8, article 1 of the United States. An unconstitutional law is no law. 26 Am. & Eng. Ency. Law, 571; Marbury v. Madison, 1 Cranch, 137; Norton v. Shelby County, 118 U. S. 263; Poindexter v. Greenhow, 114 U. S. 270; Express Co. v. Rose, 124 Ga. 581; Crutcher v. Kentucky, 141 U. S. 47; Allen v. Pullman Co., 191 U. S. 171. (2) Even if it should be held that the Texas statute is valid, the plaintiff is entitled to recover in this case, because that statute cannot reasonably be held to apply to the goods in controversy. The Texas statute, if applicable only to intra-state shipments, might be valid; if intended to be applicable to interstate shipments, it would certainly be void; if intended to be applicable to obligations thereafter incurred it might be valid; if intended to be applicable to contracts made it would be void. It is therefore presumed to have application only to intra-state shipments, and to obligations arising after the passage of the act. Osborn v. Florida, 33 Fla. 162,164 U. S. 650; Kehrer v. Stewart, 117 Ga. 969, 197 U. S. 60. (3) Inasmuch as the Texas statute did not make delivery upon payment of the purchase price unlawful, but merely required a license therefor, such statute, even if applicable to the shipments in question, would not justify defendants in breaching their contracts. The Texas act did not purport to make delivery upon payment unlawful. It provided: “Any person, firm or corporation doing business in this state shall, at each office or place kept, operated or maintained by such person, firm or corporation, at which intoxicating liquors legally deliverable are delivered upon payment, of purchase money therefor,” take out a license. This act does not make delivery of C. O. D. liquor shipments within the state unlawful. It expressly recognizes that such liquor may be “legally deliverable.” A change in the law, making performance of a contract merely more difficult, does not excuse a breach of the contract. 9 Cyc. 629, 631. A subsequent impossibility in performing a contract, caused by the passage of a foreign law, is no excuse. Trading Co. v. McDonald Co., 114 Fed. 985; Rosenbaum v. Credit System Co., 64 N. J. L. 34. (4) Defendants’ acts amounted to a conversion. Grain Co. v. Railroad, 176 Mo. 480 ; Bank v. Railroad, 135 Mo. App. 74. Defendant’s return of the goods to Kansas City, without plaintiff’s consent, was a conversion. The return of the goods to Kansas City without plaintiff’s consent, and defendant’s refusal to deliver the goods to plaintiff, except upon condition that he pay the full return charges, constituted a conversion. 6 Cyc. 494; 5 Am. 6 Eng. Ency. Law (2 Ed.), 232; Loeffler v. Packet Co., 7 Mo. App; 185; Miami Co. v. Railroad, 38 S. C. 78; Davis v. Railroad, 4 Jur. N. S. 1303; Rice v. Railroad, 3 Mo. App. 27.
   WOODSON, J. —

This is a suit in conversion. The facts are undisputed and are briefly as follows:

The plaintiff, at all the times hereinafter mentioned, was a wholesale liquor dealer in Kansas City, Missouri, transacting business in the ordinary manner throughout the United States; and the defendant, the Pacific Express Company, a common carrier, was during said times engaged in carrying express matters throughout the United States, and especially from the State of Missouri to the State of Texas.

That shortly prior to February 12, 1907, the plaintiff delivered to the defendant, express prepaid, certain packages of liquor to be transported by it to the former’s customers in the State of Texas; the delivery thereof to be made on the payment of the price thereof, as will be presently stated.

On said February 12, 1907, the State of Texas duly enacted a statute imposing an occupation tax on all persons and corporations “handling liquors C. 0. I).” The license or tax imposed by the statute was $5,000 a year at each place maintained for that purpose.

That after the acceptance of said liquors by the defendant and prior to their delivery, said statute went into effect, and the defendant refused to deliver the packages or to collect the price thereof, and after due notice returned the same to the plaintiff at Kansas City, where they offered to deliver them to the plaintiff, upon condition that he pay the return express charges thereon. The plaintiff refused to pay said •charges, and to accept said goods, and the defendant now holds the same, as it claims, for the use of the plaintiff.

The plaintiff instituted, this suit in the circuit court of Jackson county against the defendant for converting said goods to its own use.

The terms and conditions of the contract of carriage and delivery to be subsequently mentioned, made and entered into by and between the plaintiff and defendant, were in'writing, and expressed in a receipt to the former by the latter upon the receipt of the goods for shipment. This receipt is the ordinary one given by express companies to the consignor of goods; and paragraph six, thereof, the one relating to the C. O. D. question involved in this case, reads as follows:

“If any sum of money besides the charges for transportation is to be collected from the consignee on delivery of the above described property and the same is not paid for or if in any case the consignee cannot be found, or for any other reason it cannot be delivered, the shipper agrees that this company may return said property to him subject to the conditions of this receipt, and that he will pay all charges for transportation, ’ ’ etc.

By paragraph 3 of the same contract it is also provided that “defendant shall not be liable for any loss or damages by act of Glod, or of the enemies of government, or by the restraint of government,” etc.

That after the taking effect of the Texas statute the defendant notified the plaintiff that if he would release the C. Ó. IX contract it would deliver the goods to the consignee; this the plaintiff refused to do, but insisted on the defendant carrying out its contract of shipment and delivery and that it deliver the packages to the consignee and collect the C. O. D. charges; which it refused to do, but upon the. contrary ordered its agent to return the liquor to Kansas City, and charged the return express charges to the plaintiff as pre-. viously stated.

I. Counsel for appellant ask for a reversal of the judgment of the circuit court for two reasons: first, because it held that the statute of Texas, mentioned, was no excuse or justification for the defendant’s refusal to deliver the packages mentioned; and, second, because the undisputed evidence shows that if the defendant is liable to the plaintiff in any manner, it is for a breach of contract and not for a conversion of the goods.

We will dispose of these propositions in the order stated.

Regarding the first: It is confidently insisted by counsel that the Texas statute is a perfect bar to plaintiff’s right of recovery in this case. This insistence is predicated upon the fact that the Court of Civil Appeals of Texas, in the case of Craddock & Co. v. Wells-Fargo Express Co., 125 S. W. 59, held said statute to be constitutional and valid, and, therefore, under the well-known rule of law, to the effect that where one agrees to do an act lawful at the time, and subsequently thereto the Legislature passes a law making the performance of that act illegal, the contract of performance is thereby annulled. [Church v. New York, 5 Cow. 538; Cordes v. Miller, 39 Mich. 581; Stone v. Mississippi, 101 U. S. 814.] Of course this rule only applies to contracts and statutes relating to matters embraced within the police power of the State.

Counsel for plaintiff with equal confidence contend, that while the Texas statute may be valid, as a defense to intra-state shipments, like the Craddock case, supra, yet it has no application to interstate shipments, like the present case, where the liquor was shipped from one State to another. This class of cases, it is contended, is governed by the interstate commerce clause of the Constitution of the United States, and that if the Texas statute is intended to apply to shipments of this character, then it is unconstitutional and void. So, in no event, it is insisted, can that statute constitute a bar against plaintiff’s right to a recovery in this case. In support of this proposition we are cited to many cases, and among others Adams Express Co. v. Kentucky, 206 U. S. 129; American Express Co. v. Iowa, 196 U. S. 133; Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441; Allen v. Pullman Co., 191 U. S. 171. None of these cases involved the phase of the C. O. D. question here presented; and in approaching its consideration it should be borne in mind that the duty to receive, transport and deliver articles of commerce by a common carrier is imposed by law, subject of course to reasonable limitations and regulations, and not by contract; while 'the C. O. D. question, that is, the collection of the purchase price of the articles transported by the carrier at the time of their delivery to the consignee and the return- of the purchase price to the consignor by the carrier, is a duty imposed1 by contract, and not by law. In other words, the carrier is under no legal obligation, in the absence of some statute, to collect the purchase price of goods carried without it contracts to so do.

And a breach of the former duty by the carrier is a violation of the law of the State or of the United States, as the case may be, and the law provides a remedy for that wrong; but the breach of the latter, the contractual duty, is the violation of the contract for which the law also provides a remedy, but the two remedies are different, notwithstanding both may have been assumed by the carrier at the same time regarding the same article of commerce. And because of this two-fold duty of the carrier, it is entitled to charge a reasonable sum for transporting and' delivering the goods, and an additional and separate sum to be agreed upon by the parties for the collection and return of the purchase price of the goods.

Under this view of the question, I am unable to see from what possible viewpoint it could be considered that the questions (1) of withholding the delivery of articles of commerce transported by the carrier; (2) the storage of the same until such time (not the reasonable time for their delivery) as the consignee is able and willing to pay for them; (3) and the collection of the purchase price thereof from the latter, has to do with either state or interstate commerce.

Suppose for instance, that an express company should to-day receive from me in Jefferson City, Missouri,. two boxes of cigars, one to be carried to John Smith at St. Joseph, Missouri, and the other to John Jones in Austin, Texas, and that in pursuance to its ordinary legal duties the company should carry the cigars to their respective points of destination and deliver them within a reasonable time to the respective consignees, would the mere fact that the express company neglected or expressly refused to agree to do the three things before mentioned^ interfere in any mannej: with either State or interstate commerce? It seems to me that it would not, for the simple reason that the performance or.non-performance of all three of those matters rest solely upon contract, and I know of no law that requires the express company or any other carrier to make or enter into a contract of that kind or for any other purpose.

If this is true, and it seems to me that it is unquestionably so, then how are we in this case going to escape that other well known rule, namely, that the things that are to be performed in the execution of the contract are governed by the law of the State where the contract is to be executed. I am not now speaking of interstate commerce or any of the things that are incidental to the free and untrammeled transportation and delivery of all articles of commerce. But I am speaking of all contracts affecting the use of all classes of property, whether produced in a state or shipped there from another, or from some foreign country, which, however, as I have tried to state are independent of and do not in any manner interfere with or stifle interstate commerce, as I tried to show by the supposed case previously stated.

Such a contract would have nothing whatever to do with the transportation and delivery of the cigars within a reasonable time, but would go further and obligate the express company to attach to its duty as a common carrier, to transport and deliver goods within a reasonable time, an additional obligation (not a duty in a strict sense) to retain and store the same for a period beyond the reasonable time fixed by law for that purpose and thereby and from that time, convert the carrier into a public storage company and collection agency, which would be wholly independent of its duties as a common carrier; and as clearly in violation of the law of Texas as if the goods had been shipped to John Smith, as agent of the consignor, with directions to receive the same from the express company and'store the same until the .purchaser should call for and pay him the purchase price thereof.

That being unquestionably true, then why would not the storage of the goods and the collection of the purchase price be governed by the laws of the State where they were to be stored and where the money is to be collected?

Suppose again, that instead of cigars, the shipment had consisted of gasoline, gunpowder, dynamite or nitro-glycerine, would it be seriously contended that the laws of Texas would not govern their storage, after the lapse of a reasonable time for its delivery, notwithstanding the agreement of the express company that it would hold the same in its office or storehouse for thirty days, or any other time beyond » reasonable time'required for its delivery? Certainly not.

Carriers of interstate commerce, the same as the consignees thereof, must obey the storage laws of the' State where located, and that duty cannot be evaded by the consignor and the carrier, or any one else, entering into a contract obligating itself or himself to retain the goods beyond a reasonable time for their delivery in violation of a state law, in order that the purchaser may have time in which to pay the purchase price.

In other words, a carrier of interstate commerce is equally subject to the-warehouse and storage laws of a state as are the ordinary citizens of that state engaged in the storage and warehouse business, and the mere fact that the carrier may see proper to add to its ordinary duties of a common carrier an additional contractual obligation not to deliver the goods within a reasonable time, will not exempt the carrier from the state laws governing the storage of goods, and the laws thereof governing the collection of debts.

And especially should this be, where the state law relates to the contractual delay duty of delivery of the carrier concerning intoxicating liquors, which all courts in Christendom hold is within itself a nuisance, and that the liquor business is also unlawful, except where authorized by statute. [State v. Distilling Co., 236 Mo. 219, where many of the cases, State and Federal, are cited and considered, bearing upon that question.]

These suggestions illustrate the principle of law I have in mind, namely, that the storage of goods after their delivery, or after the lapse of a reasonable time for their delivery, is a separate and independent matter from either state or interstate commerce, and is and must be governed by the storage laws of the state where they are located, and as a necessary sequence, the collection of the purchase price of the goods, at least, after the storage period has begun, is and must be governed by the laws of the state where they are located, and the collection is to be made.

"While I believe that the Constitution of the United States is the greatest and wisest instrument ever written for the government of a great nation, and especially the commerce clause thereof, of which so much has been said and written, yet I do not believe that its wise and useful purpose was designed for, or should be used as a shield for the protection of designing persons engaged in a business prohibited by the laws of any state, so long as those laws do not in any manner interfere with the transportation and delivery of articles shipped from one state to another, or from a foreign country. Of course, I am not considering the questions of taxation of articles of importation, etc., but am trying to confine my observations to the single question in hand.

But it has been suggested: Suppose liquors should be shipped to-day from Kansas City to Austin, Texas, C. O. D., and the contract should be silent as to the time of delivery, which would of course mean a reasonable time, and within that time the goods should be delivered and the purchase price paid to the carrier? In answer to that suggestion I would say that no such case is before the court; but by way of obiter I would say that in principle there would be no difference in the two cases, for the reason that the legal duty of the carrier to ship and deliver the goods, and the contract or agreement to collect the purchase price, etc., are not so interdependent as to prohibit the Legislature from segregating the former from the latter, and enacting laws in the nature of police regulations regarding the collections.

And no fair-minded, disinterested man can read this record without reaching the conclusion that the C. O. Di. contract mentioned in this case was resorted to in order to sell intoxicating liquors in the State of .Tesas in violation of the laws thereof; and in order to meet this evil the statute of 1907 was by the Legislature of that State enacted, and not for the purpose of interfering with state or intérstate commerce.

It has been suggested that if such a statute is upheld, then the legislature of a State, under the guise of regulating the storage of property and the collection of money, might thereby interfere with and stifle interstate commerce. In answer to that suggestion, I simply refer the parties to the able, well considered and patriotic opinions in the cases of Express Company v. Kentucky, supra; American Express Co. v. Iowa, supra; and Heyman v. Southern Railway Co., 203 U. S. 270, with the added observations that the Supreme Court of the United States, in the future, as. in the past, will never lend countenance to any rule, statute or judicial ruling of any State authorizing the erection of a wall of any kind against free intercourse and the transportation of persons and property from one state to another.

Believing as I do, that said statute does not in any manner operate in restraint of interstate commerce, I am clearly of the opinion that the same is a valid enactment, as was held by the Texas Civil Court of Appeals in the ease of Craddock v. Wells-Fargo Express Company, supra.

I am, therefore, of the opinion that when said statute went into effect, it was a valid police regulation and a legal excuse for the defendant’s refusal to deliver the liquors and collect the purchase price thereof.

II. Regarding the second reason assigned by defendant for a reversal of the judgment, namely, that if it is liable at all to the plaintiff, it is not for a conversion of the liquor shipped, but for damages for a breach of the C. O. D.. contract, as before defined, for non-delivery of the liquors and not collecting the purchase price thereof, as therein provided.

If we are correct in holding in paragraph one of this opinion that the C. 0. D. contract mentioned was separate and independent of the defendant’s duty as a common carrier to transport and deliver the packages within a reasonable time, -then clearly, under the undisputed evidence that the defendant still has the packages and offers to return them to the plaintiff upon the payment of the express charges from Texas to Kansas City, there could be no conversion. These facts do not constitute a conversion of the liquors, but a breach of the C. 0. D. contract, which took effect after the defendant’s duty to the plaintiff as a common carrier had terminated.

. Entertaining these views I am of the opinion that the judgment of the circuit court should be reversed; and it is so ordered.

All concur, except Bond and Baris, JJ., who dissent.


text:
    ABRAM ROSENBERGER v. WELLS FARGO & CO., Appellant.
    In Banc,
    May 20, 1914.
    For tbe reasons stated in Rosenberger v. Pacific Express Co., ante, page 97, tbe judgment in tbis case is reversed.
    Appeal from Jackson Circuit Court. — Row. Walter A. Poioell, Judge.
    Reversed.

      Lathrop, Morroiu, Foco & Moore, Cyrus Crane and Watson, Watson & Alford for appellant.

      A. F. Smith and Roselle, Vineyard & Thacher for respondent; Frank A. Boys of counsel.
   WOODSON, J. —

This case is on all-fours with the case of Rosenberger v. Pacific Express Company, ante, p. 97, the opinion in which is handed down with this. While they are separate and distinct cases, yet they were appealed together; and by stipulation the record in that case is made applicable to this. Counsel in the former case represent the parties in this case; and by stipulation the briefs and arguments are made applicable to both.

The rulings and conclusions reached in the case of Rosenberger v. Pacific Express Co., supra, are, under the stipulation of the parties, controlling in this case. And for the reason stated in that case, the judgment of the circuit court is reversed.

All concur, except Bond and Faris, JJ., who dissent;