court could rightfully say that the officers the officer affecting the carrier was the seiz ! were without authority to act outside of the ure. Indian country. That was true when ap- ! [7] Under the statute and his commission, plied to the facts of that case, and, besides, he had apparent authority to take it, even was conceded to be so by the defendants. if the Evans v. Victor Case, when correctly 204 Fed. 364, 122 C. C. A. 531. So that we interpreted, means that he had no real auhave been cited to no case holding that, thority to act outside the territory. But that where the liquor is stored near the line of case was not decided until April, 1913, and forbidden territory, consigned to persons under the ruling in McAlister v. Chicago, etc., who live and operate therein, as the officer R. Co., 74 Mo. 351, the carrier was not bound testified they did, and by reason of his ex- to construe the statute nor foresee the rulperience with them before and his knowledge ing in the Victor Case. of their operations, he had reason to sus- [8] Neither was the agent required to repect that the liquor was about to be intro- sist the officer and attempt to himself decide duced into the forbidden district, he has no the question of law presented. When the ofauthority to seize, but is powerless to move ficer of the law appeared and showed his auuntil after the intending lawbreaker, under thority, his power to take the liquor was cover of the night or some other favorable more formidable than if the “public enemy" opportunity, has succeeded in getting it into had appropriated it, since he represented the the district and scattering it among his thirs- majesty of government, to respect and obey ty patrons. If the statute means that the which is the duty of all good citizens. The officer cannot seize until after it is in for- subject of the shipments was intoxicating bidden territory, then what is the use or liquor, an article subject to the police power meaning of the words “is about to introduce" of government, and, if about to be introducin. the statute? If he can only act within ed into forbidden territory, was contraband. the forbidden territory, then he can never The power of the United States officer, and seize any liquor that is "about to be intro- his determination to take the liquor under duced,” since then it has already been intro- authority vested in him by government, was, duced. The officer in this case was not ap- under such circumstances, the highest form pointed with authority limited to a particu- of vis major, and, unless it was the agent's lar district, like a constable to a township or duty to resist the officer, the defendant a sheriff to a county. He was appointed un- should not be held liable. In many analoder the laws of the United States, the gov- gous cases it is held that, even where the ofernment of which extends over all the states ficer has apparent authority, he should not as to matters within its jurisdiction. We do be resisted, and this seems to be consonant not mean to say that an officer could go any- with law and order and with established where in the United States and search for and forms of government. Savannah, etc., R. Co. seize liquor upon the pretext that it was v. Wilcox, 48 Ga. 432; Western, etc., R. Co. about to be introduced into Indian country, v. Thomas, 60 Ga. 314, 27 Am. Rep. 411; but certainly, where a large consignment of Western, etc., R. Co. v. Thornton, 60 Ga. 312. it is sent to a point on the edge of a forbid. In the case of a carrier of passengers it is den district, consigned to parties living and held that, if the officer is acting within his operating therein, then either the officer has apparent authority, it is not the duty of the a right to seize it if he suspects it is "about carrier to resist the officer, even though the to be introduced," or else these words in the arrest prove afterwards to be wrongful. statute mean nothing whatever. Thompkins v. Missouri, etc., R. Co., 211 Fed. The officer says he did suspect it, and the 391; Brunswick R. Co. v. Ponder, 117 Ga. evidence was ample that that was just what 63, 43 S. E. 430, 60 L. R. A. 713, 97 Am. St. was intended to be done with it. Not only Rep. 152; Bowden v. Atlantic, etc., R. Co., did he suspect it, but he carefully checked 141 N. C. 28, 56 S. E. 558, 12 Ann. Cas. over the large number of liquor shipments | 783. In these last cases the liability of the found, and seized only those he thought carrier was not that of an insurer, it is true, were going into the Indian country. It is but the degree of care required was of the true the statute authorizes the officer to de- highest, and the duty of the carrier not to stroy liquor only when it is found in the In- violate the law by resisting an officer would dian country, but that does not affect the seem to be the same in both cases. At any right given in the first part of the section to rate, his failure to resist cannot be deemed seize and take before the proper tribunal, to a consent to the taking. However, if we are be proceeded against by libel, any liquor he right in holding that the officer could invesrightfully suspects is about to be introduced. tigate and seize the liquor, then the failure And, as we have stated, the carrier ought not to resist the officer could have no place in to be held liable for the officer's misconcep- the case. We do not think the officer can be tion of his duty after the goods have been denied that power, under the circumstances seized and taken away from the possession disclosed here, without striking out of the of the carrier. The carrier had nothing to statute words which certainly have some do with the destruction of the goods; that meaning and were placed there for a purpose. Atchison, Topeka & Santa Fé Ry., 182 Mo.ners doing business under the firm name and App. 1, 167 S. W. 631, the Springfield Court style of the Harvest King Distilling Comof Appeals held that the officer had no au- pany, against the American Express Comthority to act outside of Indian country, fol- pany. Judgment for plaintiffs, and defendlowing the case of Evans v. Victor, supra, ant appeals. Affirmed. wituout discussing the feature of the statute See, also, 179 S. W. 797, 800. we have mentioned covering the officer's Ashley & Gilbert, of Kansas City, for apright to seize liquor when about to be introduced into Indian country. This requires us pellant. I. J. Ringolsky, of Kansas City, for to certify the case to the Supreme Court for respondents. final adjudication. The judgment is therefore reversed, but JOHNSON, J. Plaintiffs, who are partners the cause is certified to the Supreme Court doing business at Kansas City under the All concur. firm name of the Harvest King Distilling Company, brought this suit in the circuit court of Jackson county December 30, 1907, for the alleged conversion by defendant of DANCIGER et al. v. AMERICAN EXPRESS 367 packages of intoxicating liquors of the CO. (No. 11679.) value of $1,391.80, which defendant had re(Kansas City Court of Appeals. Missouri. ceived as a common carrier for transportaJuly 2, 1915. Rehearing Denied Oct. 4, 1915.) tion and delivery to various consignees at 1. JUDGMENT 540— CONCLUSIVENESS – In different points in the state of Mississippi. GENERAL The petition, which is in one count, contains Where two actions present the same par- an itemized list of shipments showing the ties or their privies, the same subject-matter, dates of the respective consignments, the and the same claim or demand, a judgment in the first action, if rendered on the merits, con- quantity and value of each, the respective stitutes an absolute bar to a second action, destinations, that each was a C. 0. D. conwhether the action be ex contractu or ex delicto; signment, and alleges: for the reasons that no one should be twice "That on or about the 10th day of May, 1906, vexed for the same cause, and that a judgment on the merits destroys a 'cause of action, which while said goods [referring to the liquors in all necessarily destroys all its component parts. of the shipments), which were then valued at [Ed. Note.-For other cases, see Judgment, while plaintiffs had the right of possession to $1,391.80, were the property of plaintiffs, and Cent. Dig. § 1079; Dec. Dig. Om540.] same, defendant, then being in the possession 2. JUDGMENT 592 - SPLITTING CAUSES OF of said goods, willfully, wantonly, and wrongACTION-INDEPENDENT CONTRACTS. fully converted the same goods to its own use, Where a demand arises out of separate and and disposed of them to plaintiffs' damage in distinct causes of action, the rule against split- the sum of $1,391.80." ting causes of action obviously does not apply ; and, where the respective demands grow out The prayer of the petition is for the reof independent acts, contracts, or transactions, covery of such damages and of exemplary they cannot be treated as parts of a single damages in the sum of $400. cause. The suit was docketed as number 35638, [Ed. Note. For other cases, see Judgment, and on the same date plaintiffs filed another Cent. Dig. $ 1107; Dec. Dig. 592.] suit against defendant in the same court for 3. CARRIERS Om91–EXPRESS COMPANIES-REDELIVERY-CONVERSION. the conversion of 450 packages of liquors of An express company receiving shipments the total value of $1,670.45, which the petiof intoxicating liquors to consignees in another tion alleged plaintiffs delivered to defendstate, and which refused to deliver them there because of its laws regulating the delivery of ant at Kansas City between the dates of intoxicating liquors, was bound to return the April 1 and May 10, 1906, for transportation packages to the shipper, and its failure to do and delivery to various consignees in the so was a breach of contract, giving the shipper state of Mississippi, and that on or about the right to sue for a conversion. [Ed. Note.--For other cases, see Carriers. May 10, 1906, defendant converted the liquors Cent. Dig. $S 338-355; Dec. Dig. Om 91.] contained in all such packages to its own 4. JUDGMENT Oww597–CONCLUSIVENESS-SUB- use. That case, which was docketed as numJECT-MATTER. ber 35637, was tried without the aid of a Where plaintiff partnership made a large jury on an agreed statement of facts, and renumber of shipments of intoxicating liquors by sulted in a judgment for plaintiffs. defendant express company by separate consulted in a judgment for plaintiffs. An aptracts for each shipment, plaintiff's recovery in peal was allowed defendant to the Supreme an action for the conversion of part of the ship- Court, on the ground that the cause presentments was no bar to a subsequent action for the conversion of the other shipments, because ed a constitutional question, but the Supreme of a lack of identity and of subject matter and Court held there was no such question in demand in the two actions. the case, and transferred it to this court. [Ed. Note.-For other cases, see Judgment, 247 Mo. 209, 152 S. W. 302. Cent. Dig. $$ 1062–1065, 1112; Dec. Dig. Om It appeared in that case, as it does in this, 597.] that the refusal of defendant to deliver the Appeal from Circuit Court, Jackson Coun- packages was prompted by the enactment of ty; W. 0. Thomas, Judge. a law in Mississippi which required "every Action by Dan Danciger and others, part- person or corporation that shall maintain or the operate any office or place of business in in their petition in the cause at bar they have this state at which intoxicating liquors le- united in one count 367 causes of action, and gally deliverable, are delivered, upon the pay-objections to the manner and form of plaintiffs that defendant and its counsel have waived all ment of purchase money therefor, shall pay uniting in one count said 367 causes of action." annually, for each said office or offices, or The present suit was submitted to the place or places of business, the sum of $5,000.00.” The position of defendant was that court September 25, 1911, "upon the evidence its refusal to deliver the shipments in the of another suit pending as a bar and upon state of Mississippi was compelled by law, the merits of this cause and an agreed stateand, taking defendant in this position of its ment of facts,” and was kept under adviseown selection, we held that it became its ment until October 3, 1914, when the court duty to return the different shipments to rendered judgment for plaintiffs for the full plaintiffs at their cost for the return carriage, amount of their demand for actual damages, , with interest, and defendant appealed. and that defendant had not performed this The facts of the case which bear upon the duty, for the reason that after returning the goods to Kansas City it had tendered them question presented by defendant for our deto plaintiffs upon the condition that they termination may be condensed into the fol"would release defendant from all liability or lowing statement: At various dates between claim of damages on account of the nonde- March 1, and May 10, 1906, plaintiffs, liquor livery of said packages to consignees." We merchants at Kansas City, delivered to de recognized the rule that a party to a con- ing liquors on C. 0. D. consignments to va fendant 817 different packages of intoxicattract must perform or tender performance rious customers in the state of Mississippi. of the duties it puts upon him without pro- Each package was the subject of an independtest, without imposing terms or conditions, and without attempting to force the other ent purchase and of a separate shipping conparty to agree in advance that his proffered nation in Mississippi, but did not deliver it, tract. Defendant carried each to its destiperformance shall be treated, if accepted, as a full discharge of his liability, and we af- on account of the enactment of the statute firmed the judgment because defendant had which imposed such onerous burdens upon not made such unconditional offer to return express companies engaging in the C. 0. D. the goods. Distilling Co. v. Express Co., 172 liquor traffic as to render the further transac tion of such business impracticable, if not Mo. App. 391, 158 S. W. 466. impossible. Defendant returned all these An amended answer filed by defendant in the instant case April 20, 1910, alleged that: tendered them to plaintiffs, who refused the packages to Kansas City, and conditionally Both suits (Nos. 35637 and 35638) “were for tender, and, treating it as a constructive conthe alleged conversion by defendant of personal property belonging to plaintiffs on or about version of the packages, plaintiffs brought May 10, 1906, as will more fully appear from two suits at the same time, in one of which an inspection of the pleadings and records of they made the conversion of 450 of the packsaid two suits," and "that the conversion on or about May 10, 1906, if any, was but one trans- ages the subject of the action, and in the action, had at the same time and place between other the conversion of the remaining 367 the same parties, and that the matter now in packages. The judgment recovered by plaincontroversy was actually determined in the for- tiffs in the first suit is pleaded by defendant mer suit, or might have been litigated under the issues then joined, and the said plaintiffs, hav- as a bar to a recovery in the second, on the ing made their election as to the manner and theory that the conversion of the entire 817 object of their suing, are now barred from suing packages was a single wrong, from which again for the same transaction; and this defendant says said former suit operates as res only a single cause of action arose, and that adjudicata as to matters and things herein set the instant suit must fail under the rule forth, and this the said defendant is ready to which forbids splitting a cause of action. make appear.” [1] The rule in such cases is that, where The reply filed by plaintiffs met this charge the two actions present the same parties (or of splitting a single cause of action into two their privies), the same subject matter, and suits with the averment that: the same claim or demand, a judgment in The suit which had proceeded to judgment the first action, if rendered on the merits, "was brought to recover damages for conver- constitutes an absolute bar to the second acsion of 450 separate packages, of liquor, each tion. One reason commonly given for the delivered to defendant for shipment under a separate and distinct contract, and the express rule lies in the common-law maxim that no charges paid separately by plaintiffs for each one should be twice vexed for the same cause; of said shipments; that the petition in said but, as we observed in Paving Co. v. Field, case No. 35637 really united in one count 450 causes of action, and should properly have been 132 Mo. App. loc. cit. 638, 97 S. W. 179, anpleaded in 450 different counts; that the claims other reason equally strong is that a judgwere thus charged in one count, by virtue of ment on the merits destroys by absorption ant and its attorneys to avoid a constant repeti- the cause of action, and the passing of the tion of the same cause of action in 450 counts cause necessarily involves the destruction of and to prevent a useless and needless incum- all of its component parts. When the body bering of the record of this court; that defend- dies, the limbs die also. Railroad v. Traube, ant waived all objections to plaintiffs' petition or account of same charging and uniting in one 59 Mo. 355; Skeen v. Thresher Co., 42 Mo. S. W. 946; Moran v. Plankinton, 64 Mo. 337;surances of the foreman and continuing work [Ed. Note.-For other cases, see Master and terial whether the action be ex contractu or $ 231.] ex delicto. If there is identity of parties 2. MASTER AND SERVANT 190—INJURY TO (or privies), subject-matter, and claim, or de SERVANT - FOREMAN AUTHORITY Asmand, in the two actions, a judgment recoy- SURANCES OF SAFETY. ered on the merits in one will be a bar to the whether a ditch needs bracing, has charge of Where a foreman has authority to decide maintenance of the other. But in instances the work, and has been given directions how where the identity of the two actions fails and when the work shall be done, and has charge in any one or more of the particulars just of the servants, he is authorized to give to the stated, a recovery of judgment in one will servants assurances of the safety of the ditch not avail to bar the prosecution of the other. servant for personal injuries by a cave in. which will bind his employer in a suit by a [2] Where the demand arises out of sepa- [Ed. Note.--For other cases, see Master and rate and distinct causes of action, the rule Servant, Cent. Dig. 88 449-474; Dec. Dig. Om against splitting causes obviously could not 190.] be applied. Railroad v. Traube, supra. And Certiorari to Court of Civil Appeals. where the respective demands grow out of Action by Will Powell against the City of independent acts, contracts or transactions, Chattanooga. Judgment for plaintiff was af; they cannot be treated as parts of a single firmed by the Court of Civil Appeals, and cause. Ruddle v. Horine, 34 Mo. App. 616; defendant brings certiorari. Affirmed. Union, etc., Loan Co. v. Farbstein, 148 Mo. App. 216, 127 s. W. 656; Corby, Adm'r, v: plaintiff. Tatum, Thach & Lynch, of Chat Carden & Snyder, of Chattanooga, for Taylor, 35 Mo. 447; Garland v. Smith, 164 tanooga, for defendant. Mo. 1, 64 S. W. 188. [3, 4] The relationship between the parties in the instant case was purely contractual. of a number of colored men engaged in NEIL, C. J. Defendant in error was one Defendant, as the bailee of plaintiffs, became charged in each of the 817 separate and dis- digging a ditch for sewerage purposes in tinct transactions with the duty of returning the city of Chattanooga, under the direction the package to plaintiffs, the bailors. The of plaintiff in error's foreman. The ditch failure to discharge this duty was a breach was a long one, extending the length of a of the contract which gave plaintiffs the right in error was at work had been excavated to city block. The part of it where defendant to sue as for a conversion of the package and the depth of 10 feet and 8 inches. Defendant its contents. The breach, in such instance, in error became apprehensive on account of created a separate and distinct cause of action, and the fact that they all occurred dur- the depth, and called the foreman's attention ing a given period of time, or even on the to the fact, and expressed some concern for same day, did not and could not have the ef- his safety. The foreman assured him that fect of welding them into a single cause of ac- the wall was safe, and commanded him to , tion. By a single act defendant may have proceed with the work. Defendant in error breached 817 separate and distinct contracts, continued for a time, and again became but that would not impart to them identity apprehensive, having observed the fall of of subject-matter, nor merge the respective some pebbles from the top of the wall, and claims or demands into a single demand. a second time called upon the foreman of the Because of a lack of identity of subject- plaintiff in error, and asked that the wall matter and demand in the two actions, the should be braced. The foreman replied that judgment on the merits recovered in the first the wall was perfectly safe, and commandwas no bar to the prosecution of the second.ed the defendant in error to continue his The judgment is affirmed. All concur. work. The latter, relying on the superior knowledge of the foreman, did as he was bidden. Soon thereafter the wall caved in upon him and injured him seriously. The CITY OF CHATTANOOGA V. POWELL. foreman was a man of large experience in the construction of ditches, and the defend(Supreme Court of Tennessee. Oct. 23, 1915.) ant in error had but little experience in this 1. MASTER AND SERVANT Cm 231-INJURY TO work, his general occupation lying in another SERVANT-DANGER-ASSURANCES OF FORE- line of labor. The earth composing the wall MAN-CONTRIBUTORY NEGLIGENCE. of the ditch was not of such a character as A foreman, a man of large experience in to warn any one of imminent danger, since the construction of ditches, had his attention called to the danger of working in a certain it appeared to be firm. The apprehension ditch about 10 feet deep by a person laboring felt by the defendant in error was based therein who had little such experience, and the wholly on the depth of the ditch. It was the foreman pronounced the ditch safe and the earth of the walls was not of such character as to give custom of the business in which the foreman warning of imminent danger. Held, that the was engaged to "shore up" deep walls when laborer was not negligent in accepting the as- he deemed them dangerous. It was on this account that the defendant in error asked that of the servant, and that the latter can that the wall extending above him be pro- rely upon the information given. To permit tected in the manner indicated. the master, under such circumstances, to The defendant in error sued the city, and throw the responsibility on the servant recovered a judgment for $350. The case would be equivalent to conferring on him was appealed to the Court of Civil Appeals, the right to practice a fraud. It would be and there the judgment was affirmed. The tantamount to permitting him to say to the case was then brought to this court by the servant: writ of certiorari. “You should not have trusted me. I invited [1] The only question we deem necessary your confidence, but you should have known it to consider in this opinion is whether the was misplaced. " trial judge committed error in refusing to No court should sanction such treachery. peremptorily instruct the jury to render a [2] It is insisted, however, that the foreverdict in favor of the city. We are of the man had no authority to give the assurance. opinion there was no error in refusing this It was his duty to decide when the wall needinstruction. Defendant in error, under the ed bracing; hence to judge of the danger. facts stated, was justified in relying upon the He was in the position of the master; he assurance of safety given to him by the fore- had charge of the work, and was giving diman, and in obeying the latter's orders to rections as to how it should be done, and continue his work. Under these facts the when it should be done. It was within his city drew to itself the risk, it not appearing line of duty to control the servants, and it that the danger was so glaring that a man necessarily followed that he had the right to of ordinary prudence would not have contin- make such assurances in good faith, in order ued to work. This principle is well settled. to secure a continuance of the work, and Mergenthaler-Horton Basket Mach. Co. v. these would be binding on the master in the Lyon, 28 Ky. Law Rep. 471, 89 S. W. 522; absence of knowledge on the part of the Central Coal & Iron Co. v. Thompson, 31 Ky. servant of an express withholding of the Law Rep. 276, 102 S. W. 272; Burkard v. power. A. Leschen & Sons Rope Co., 217 Mo. 466, We are referred to the case of Brown v. 117 S. W. 35; McKee v. Tourtellotte, 167 Electric Co., 101 Tenn. 252, 47 S. W. 415, 70 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542; Am. St. Rep. 666. Swearingen v. Consolidated Troup Min. Co., That case is not in point. The nature of 212 Mo. 524, 111 S. W. 545; Allen v. Gilman the earth, as described in the opinion of the (C. C.) 127 Fed. 609; Consolidated Coal Co. court, was such as to furnish a direct warnv. Shepherd, 220 Ill. 123, 77 N. E. 133; Bacing to the servant of the imminence of his celli v. New England Brick Co., 138 App. Div. danger. It was made earth656, 122 N. Y. Supp. 856. "principally filled in with cinders, which was The exception just noted as to glaring loose stuff, and the person who was digging dangers is a sufficient protection to the could tell this better than any one else.” master. The latter should not be permitted It appears that the servant knew the danin other cases to say that the servant as- ger he was incurring. yet made no complaint, sumed the risk in the face of an assurance of nor did he receive any assurance of safety, safety and a command to proceed. The as- if indeed such assurance would have amountsurance, in such a case, is equivalent to a ed to anything under the facts of that case. statement to the servant that the master Let the judgment of the Court of Civil has a knowledge of the matter superior to Appeals be affirmed. |