thority to act in the particular case. Sparks per company "duly released all its interest v. Dispatch Trans. Co., 104 Mo. loc. cit. 539, in the" policy, and, together with Allen, 540, 15 S. W. 417, 12 L. R. A. 714, 24 Am. "duly requested defendant to substitute one St. Rep. 351; section 2993, R. S. 1909. The Rhoda Allen, wife of said George D. Allen, evidence of Allen's control did not, therefore, as beneficiary in the place and stead of said justify the court in sustaining the demurrer. paper company"; that Allen and the paper IV. Did the corporation ratify the change, company "duly surrendered" the policy, and or did it estop itself to set up want of au- that defendant, pursuant to said request, on thority in Allen and Cavanagh? Allen, August 29, 1910, issued a policy, under the Cavanagh, and Dana were the only stock- same number and for the same amount, inholders and only directors of the company in suring Allen's life in favor of Rhoda Allen August, 1910, when the change was made. instead of in favor of the paper company; The evidence tends to show that the two for- that Allen died December 4, 1910, and that mer, president and secretary, respectively, of defendant on December 24, 1910, paid Rhoda the company executed in its apparent behalf Allen the amount of the policy, $50,241.50. and sealed with the corporate seal a docu- This is a plea that the paper company lement whose sufficiency on its face, to justify gally authorized the change of beneficiary. respondent in making the change of benefi- Neither estoppel nor laches, relied upon as ciary, is not questioned. While no action of estoppel, is pleaded. In this case neither the board of directors, as a board, supports could be relied upon without being pleaded. this document, yet the evidence tends to show Turner v. Edmonston, 210 Mo. loc. cit. 428, each of the three directors, they being all 109 S. W. 33, 124 Am. St. Rep. 739; Blodgett the stockholders, had knowledge of the pro- v. Perry, 97 Mo. loc. cit. 272, 273, 10 S. W. posed action and all consented to it; Allen 891, 10 Am. St. Rep. 307; State ex rel. v. and Cavanagh by signing the instrument of Railway, 140 Mo. loc. cit. 555, 41 S. W. 955, ficially, and Dana orally, according to his 38 L. R. A. 218, 62 Am. St. Rep. 742; Cockrill testimony. Upon the faith of this document, v. Hutchinson, 135 Mo. loc. cit. 75, 36 S. W. according to the evidence, respondent chang- 375, 58 Am. St. Rep. 564. Nor was there a ed the beneficiary, substituting Allen's wife waiver of the plea. McDonell v. De Soto for the company. These men remained the Sav. & Bldg. Ass'n, 175 Mo. loc. cit. 275, 75 only directors and stockholders until the S. W. 438, 97 Am. St. Rep. 592. For this middle of September or the 1st of October, reason and because the facts tending to 1910. At that time Dana was succeeded by prove estoppel and laches are not all admitMrs. Allen. For the quarterly premium due ted, but depend in essential particulars upon in September, 1910, Allen gave his personal the testimony of witnesses whose credibility note, and the insurance company's agent advanced the cash to his company. December was for the jury, the giving of the peremp3, 1910, this note, without respondent's knowl-tory instruction cannot be sustained on this phase of the case. edge, was paid through a bank with the paper company's money. December 4, 1910, Allen died. Cavanagh, in connection with the proofs of loss, made affidavit that none other than Mrs. Allen had any interest in the policy. December 23, 1910, the company paid Mrs. Allen the face of the policy and a post mortem dividend, aggregating $50,241. At no time, according to the evidence for respondent, did any stockholder, director, or other person suggest to the insurance company that there was any want of authority for the execution of the instrument in question. There was evidence pro and con on the question whether the company was insolvent in August, 1910, but there is no evidence respondent had any knowledge of such insolvency, if it existed. Such is the tendency of the evidence upon the question of ratification and estoppel. [7-11] (a) In this case if the paper company is estopped, then is the trustee estopped? Pott & Co. v. Schmucker, 84 Md. loc. cit. 556, 36 Atl. 592, 35 L. R. A. 392, 57 Am. St. Rep. 415. The answer admits the issuance of the original policy and the change of name of the paper company. It avers that the pa [12, 13] (b) While ratification is equivalent to antecedent authority, and may be shown under a general allegation that the act is that of the principal (McLachlin v. Barker, 64 Mo. App. loc. cit. 526), yet there is not a sufficient basis of conclusively established facts to require, as a matter of law, that the court find a ratification. Calumet Paper Co. v. Haskell Show Ptg. Co., 144 Mo. loc. cit. 338, 45 S. W. 1115, 66 Am. St. Rep. 425; Tyrell v. Railroad, 7 Mo. App. loc. cit. 299; Campbell v. Pope, 96 Mo. loc. cit. 473, 10 S. W. 187; First National Bank v. Fricke, 75 Mo. loc. cit. 184, 42 Am. Rep. 397. That there is evidence of ratification is not enough. In the absence of a showing conclusively establishing the facts making out ratification, that question of fact, like any other, is for the jury. V. It is quite clear from the preceding paragraphs that there is no ground upon which we can direct a judgment for appellant. The judgment is reversed, and the cause remanded for further proceedings not out of harmony with this opinion. All concur, except BOND, P. J., absent. BEHRMANN v. CITY OF ST. LOUIS. MUNICIPAL CORPORATIONS 747(4)- INJU- One injured when municipal garbage wagon struck the ladder on which he was working could not recover damages therefor from the city, since the city, in using such agency, was exercising a "governmental power." This question must be regarded individual. as stare decisis, if the rulings in the recent cases are to be adhered to. It cannot be distinguished in principle from the case of Cassidy v. St. Jo., 247 Mo. loc. cit. 197, 152 S. W. 306, affirmed in Sprague v. City of St. Louis, 251 Mo. loc. cit. 624, 158 S. W. 16. In the former case it was held that the injuries to a fellow workman by a runaway team hitched to a wagon driven by city employés, into which they were shoveling refuse, were not recoverable, for the reason that the city of St. Joseph, in the use of such agency, was exercising a governmental and public power vested in it as a municipality of the state. This decision was rendered before the trial of this case, and it was the duty of the trial court to apply the principle therein announced. This was done when he sustained the demurrer to the petition, alleging the Wm. Zachritz and Harmon J. Bliss, both facts hereinbefore stated as a basis for the of St. Louis, for appellant. Charles H. Daues and Everett Paul Griffin, both of St. Louis, for respondent. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Governmental Power.] Appeal from St. Louis Circuit Court; Kent Koerner, Judge. Action by Ernst Behrmann against the City of St. Louis. From judgment for defendant, plaintiff appeals. Affirmed. BOND, J. I. Action to recover $15,000 damages for personal injuries alleged to have been sustained by plaintiff through the negligence of an employé of the city of St. Louis. The petition alleged that on November 19, 1913, while plaintiff was engaged in repairing a gutter on a certain slaughterhouse in the city of St. Louis, and while he was standing on a ladder which rested against the top of the building, which was about 16 feet in height, its base resting on the ground, about 4 feet from the wall of the building, a garbage wagon, owned and operated by the city of St. Louis, and in charge of one of its employés, was driven through the alley in which plaintiff was working, and the driver, in the discharge of his duties as garbage collector, negligently stopped his team directly behind the ladder on which plaintiff was standing at work, although the alley was at that point more than 16 feet wide; that the driver left his team of mules with no one to watch them, and during his absence, and while plaintiff was intently engaged in his work, with his back to said alley, the mules suddenly started forward and struck the lower part of the ladder, throwing plaintiff violently to the ground, and seriously and permanently injured him. A general demurrer was filed by the defendant city, upon the sustention of which the plaintiff refused to plead further, whereupon judgment was rendered for defendant and appealed from by plaintiff. II. The sole question presented by the sustention of the demurrer in this case is whether or not, upon the facts stated in the petition, the city was acting in its governmental and public capacity, or in its private and proprietary capacity, in which latter event it would be liable for the negligence of its agents and employés in the same way as an recovery. The judgment in this case is affirmed. It is so ordered. All concur. MACOM et al. v. BREWSTER. (No. 18915.) (Supreme Court of Missouri, Division No. 1. March 4, 1918.) 1. BOUNDARIES 3(6) — CITY PLATS-CONTROL OF PLAT LINES LOCATED OVER MONUMENTS AND SURVEYS. Where the parties in ejectment suit to determine boundary lines took deed to adjoining lots from a commissioner in partition, each deed locating the lot thereby conveyed according to the measurements stated in a public plat of a city addition, their rights were governed by the rule under Rev. St. 1909, §§ 10290-10294, inclusive, as to plats of cities, that the lines of the plat as actually located on the ground control over monuments and other surveys. 2. APPEAL AND ERROR 1010 (1) TIONS OF FACT-FINDING. QUES In ejectment to determine boundary line, where trial court, sitting as a jury, determined, upon sufficient testimony, the correct location of the line, his finding, in the absence of error, was not reviewable. Appeal from Circuit Court, Butler County; J. P. Foard, Judge. Action by Henry H. Macom and others against Arthur T. Brewster. From judgment for defendant, plaintiffs appeal. Affirmed. Sheppard & Sheppard, of Poplar Bluff, for appellants. D. W. Hill, of Poplar Bluff, and Sam M. Brewster, of Ironton, for respondent. BOND, J. I. At a partition sale plaintiffs and defendant acquired title to adjoining lots, numbered 32 and 39, of Davidson's addition to the city of Poplar Bluff, Mo. On July 14, 1913, commissioner's deeds to said lots 32 and 39 were duly executed and delivered to plaintiffs and defendant, respectively. Each deed located the lot then conveyed according to the measurements stated in the plat. Afterwards a house was built on what was shown by the plat of the subdivision to be lot 39. On March 4, 1914, a dispute having arisen over the boundary line, this suit was instituted. The petition seeks to determine the boundary between lots 32 and 39 and eject defendant on the allegation that his house was located on lot 32, if correctly bounded. In his answer defendant disclaimed any interest in lot 32, and denied that he was in possession of premises other than lot 39, upon which his house stands. On the trial a jury was waived, and the evidence shows that the controversy arose over a difference of opinion as to the measurements of the lots comprising Davidson's addition as platted and the actual measure designations as laid out in the public plat of Davidson's addition to the city of Poplar Bluff. There was evidence tending to show that the application of the locations and measurements of the lots according to their description in the public plat would leave the house on lot 39, which is owned by defendant. The trial court, sitting as a jury, found in accordance with that testimony. In the absence of error on the trial (not disclosed in the record), that finding is not reviewable on appeal. The result is that the judgment of the trial court is affirmed. It is so ordered. All concur. ments of the surface of the ground; that this OWENS v. KANSAS CITY, C. C. & ST. J. difference in the two measurements is a matter of about 50 feet. The evidence tended to show that, according to actual measurement of the surface of the ground, the house of defendant, Brewster, is on lot 32, but that a straight line running from Elm street (conceded by all surveyors to be a proper starting point) running north the distance specified on the plat would place the house on lot 39. There was also evidence tending to prove that, if College street should be located as prescribed on the dedicating plat, there would be no excess in the dimensions of the lots. The court found on the second count in ejectment, among other things, as follows: RY. CO. (No. 18755.) trestle was at the time of injury so intoxicated That trespasser on a suburban railroad's as to be unable to exercise ordinary care, and that such inability contributed to his injury, did not relieve the railroad company from liability for his injury under the humanitarian doctrine, which is designed to protect those who have foolishly, or even purposely, placed themselves 2. APPEAL AND ERROR ~499(4)—BILL OF Ex CEPTIONS. "That the two-story house mentioned in their peril. evidence at all times has been located entirely on lot 39 in Davidson's addition, which lot 39 is owned by the defendant and adjoins lot 32. The court further finds that there is no surplus land not platted in Davidson's addition, and that the deeds of plaintiff and that of defendant properly describe their respective holdings according to the original plat of Davidson's addition, introduced in evidence from page 11 of the Plat Book and referred to in the commissioner's deed under which plaintiffs hold, and in the commissioner's deed under which defendant holds." On the above finding the court gave judgment for defendant, from which plaintiffs appealed. [1] II. This case must be governed by the rule announced by this court construing the statutes providing for plats of cities. R. S. 1909, §§ 10290-10294, inclusive. With that object this court recently said that the ordinary rule as to the conclusiveness of courses, distances, and monuments should be suspended by applying the doctrine of estoppel, by the recitals of his deed, to any person holding a conveyance wherein his land is described according to the lines and measurements set forth on the public plat. Laddonia v. Day, 265 Mo. 397, 178 S. W. 741; Jackson v. Miller, 195 S. W. 705. On appeal by defendant from order granting new trial for error in giving instruction requested by it that appellant's bill of exceptions does not bring into the record facts showing whether plaintiff objected to the giving of such instruction is not ground for reversal, plaintiff having filed no bill of exceptions, since plaintiff may stand mute and needs no bill of exceptions. (Blair and Graves, JJ., in division 1, expressing no opinion.) 3. RAILROADS FOR JURY. 400(14)-ACTION-QUESTION In suit for death of trespasser on suburban railroad's trestle, based on humanitarian doctrine, evidence of negligence after discovered peril held to make the case one for the jury. Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge. Action by Mary Owens against Kansas City, Clay County & St. Joseph Railway Company. From order sustaining motion for new trial, defendant appeals. Affirmed and re This is an appeal from an order of the circuit court for Platte county sustaining a motion for a new trial. One of the grounds for this action stated in the plaintiff's motion for a new trial is as follows: [2] In this case the additional abstract dis-structions numbered 6, 7, 8, 5, 10, 2, 3, 9, and "IV. Because the court erred in giving incloses that the parties took their respective 4 at the request of defendant over the objecdeeds from a commissioner in partition, and tion of plaintiff." that the lots so conveyed were bounded according to the lines and measurements and The order of the court sustaining the motion stated: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes That it was "sustained on the one, sole, and only reason that defendant's given instruction No. 10 is erroneous, and for no other reason whatever." During the trial and at the close of the plaintiff's evidence the defendant asked the court to instruct the jury to return a verdict in its favor, which the court refused, and defendant excepted. The same was repeated at the close of all the testimony. There is no statement in the bill of exceptions filed by appellant as to whether or not the plaintiff, at the trial, objected to any instruction given for defendant, other than the statement to that effect in the motion for a new trial. The suit was for damages for the death of plaintiff's husband alleged to have been caused by negligence of defendant in striking him with one of its cars on its line of electric railway between Excelsior Springs and Kansas City, and knocking him from the defendant's bridge upon which he was at the time. The facts were that the deceased had been in Kansas City that day, and at some time in the neighborhood of 6 o'clock in the evening had taken a car on defendant's line going east, which he left at the station of Avondale, and started east, walking upon defendant's track, which crossed a steel trestle bridge just east of that station. The bridge was 600 or 700 feet long, with no structure above the deck on which the track was laid upon wooden ties projecting a short distance on each side, with spaces between them, and held in place by a longitudinal timber bolted to them at their ends. The structure was of sufficient height to clear the operation of a steam railway which passed underneath it, as did also a public road. At the time of the accident the deceased had arrived at a point more than 100 feet from the west end of the bridge, and was sitting upon the ends of these ties at the north side of the track which curved to the south with a deflection of something more than three degrees in each 100 feet, so that he was sitting on the outside of the curve. When the car approached him from the east it had left Liberty, several miles east of the place, at 6:45 o'clock, so that it was after dark. The motorman was standing in his position in the front vestibule, with his right hand on the control of the air valve which operated the brake. The headlight was an are lamp in front of a reflector, and was strong enough so that the cone of light plainly extended to a distance of 1800 feet, but in passing around the curve to the left it left the rails and floor of the bridge some distance ahead, so as to leave the structure itself in darkness. The motorman testified that as he was looking ahead the cone of light swung to the track and lighted the face of the deceased, who seemed to be in the act of rising, and that he immediately applied the emergency brake, stopping the car at a distance of from 380 to 400 feet from the place at which the man first became visible to him. man also stated that when he saw him the deceased was near a steel beam which extended across the structure and somewhat outside the ends of the ties, and that if the man had had sufficient presence of mind he might have stepped on that and saved himself. This witceased or whether he fell off the bridge. When the car passed he was gone and afterwards picked up below the bridge, having received mortal injuries about the head and body. When he was picked up he had whisky in his pockets, and there was evidence that he was somewhat intoxicated when he left Kansas City. ness did not know whether he struck the de The foregoing are substantially the undisputed facts about which a considerable amount of evidence revolves, which we can notice more effectively in the opinion. John E. Dolman, of St. Joseph, and Hadley, Cooper, Neel & Wright, of Kansas City, for appellant. J. H. Hull, of Platte City, and Handy & Swearingen, of Kansas City, for respondent. BROWN, C. (after stating the facts as above). [1] I. That the deceased was a mere trespasser upon the defendant's bridge, which was constructed for purposes of railway traffic only, and was guilty of negligence in placing himself in the position in which he was encountered by the car, is clearly shown by the evidence, and the duty which the defendant owed him under such circumstances was clearly and correctly submitted by the plaintiff's instructions, which are not criticized by the appellant. This duty has long been designated by this court as well as by many others the "humanitarian doctrine," because it arises from the humane sentiment which shrinks from the perpetration of injury, even upon those who have foolishly, or even purposely, placed themselves in peril. In such cases as this, where there is nothing in the circumstances to cause apprehension that such a condition will be found, the duty arises when one becomes aware that another is in danger from the operation of causes under his control. It then becomes his duty, without regarding the causes in which the perilous condition had its origin, to use reasonable care, having due regard to the nature and magnitude of the threatened injury, to prevent it. This being the only theory upon which the cause was submitted, or could have been submitted, to the jury, there can be no doubt of the impropriety of the instruction No. 10, for error in the giving of which the trial court granted a new trial. It disregarded the doctrine upon which the case had been submitted by plaintiff, and told the jury, in substance, that if at the time of the injury the deceased was so intoxicated as to be unable to exercise the care and prudence ordinarily exercised by prudent and sober men in the facts and circumstances of this care on his part directly contributed to the injury, the plaintiff could not recover. This, in terms, went to all the "facts and circumstances in this case," and told the jury in no uncertain language that, if he came on the bridge because he was intoxicated, or was intoxicated and helpless while there, he could not recover. The same rule would exclude from the operation of the humanitarian doctrine the needless killing of one lying evidently helpless across the track, should it appear that his helplessness resulted from intoxication. [2] II. The defendant insists that this court should reverse the order granting a new trial on the ground that the bill of exceptions does not bring into the record the facts showing whether or not the plaintiff objected to the giving of its tenth instruction. The plaintiff is respondent here. She filed no bill of exceptions and needs none. She may stand mute. It is unnecessary that we should decide whether or not, had appellant stated in its bill of exceptions that the instruction was given without objection, it would have called for a reversal of the order. No such case is here. Short v. Kidd, 197 S. W. 64. [3] III. The appellant contends that the verdict should stand because no other verdict could have been lawfully rendered upon the evidence. We have carefully examined this, and it may be summarized about as follows: The motorman testified that he was looking at the track ahead, and saw the deceased the instant the rays from the headlight struck him. This, he said, was 146 feet away, which is a close calculation, considering that the car was running at the rate of 29% feet each second. It was shown to have been much further by witnesses who measured the distance from data which he himself gave, as well as from personal tests made by themselves. He said that, having his hand on the proper control, he released the air, and thereby set the emergency brake instantly. It is a matter of common knowledge among those accustomed to railway travel that when the wheels are clutched by brakes having behind them the full power of the air provided for such emergencies there is a jar which forcibly directs their attention to the sudden character of the stop; yet in this case passengers sitting near the motorman testified that they experienced nothing to distinguish it from the ordinary station stop. One of these witnesses saw and was looking at the deceased at the time. There was apparently credible testimony that, being in good condition, the car could have been stopped within 150 feet or less. As to his recognition of the danger in which the deceased was placed at the time he first saw him the motorman said that, if he had had sufficient yond the ends of the ties at the point where he was sitting. The fact that this was the only way out of the difficulty suggests that it might require courage as well as presence of mind for one ever so sober to step down upon the flange of a steel beam which must have been more than 20 feet above the railway beneath it, in the dark. We think there was substantial evidence that the deceased in the position he occupied was in danger from the approaching train; that the motorman saw and recognized it; that with the appliances he had he could have stopped his car before reaching the deceased; and that the injury resulted from the failure to do so. Under these circumstances we see no reason to interfere with the action of the court in granting a new trial for the reasons stated by the court in the order appealed from, which is affirmed, and the cause remanded to the circuit court for Platte county for further proceedings. RAILEY, C., concurs. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur. BLAIR, J. (specially concurring). The motion for new trial complained of the giving of instruction 10. An exception taken to the giving of the instruction was not prerequisite to the trial court's granting of a new trial because of error in instruction 10. Appellant's citations rule that an appellate court will not consider an assignment of error based on such state of record. The statute provides this rule. Those decisions deal with motions which had been overruled. This motion was sustained. The question was dealt with in Schuette v. Transit Co.. 108 Mo. App. loc. cit. 25, 26, 82 S. W. 541, and a correct conclusion reached. A like rule was announced in Richter v. Railroad, 145 Mo. App. loc. cit. 16, 129 S. W. 1055. In this last the appellate court had no jurisdiction; yet its conclusion is correct and in point. The motion took the whole case over to the next term. Winkler v. Winkler, 199 S. W. 981, not yet officially reported. I express no opinion on paragraph 2 of the opinion, but concur in the rest and the result. GRAVES, J., concurs in these views. HAMILTON v. PRYOR et al. (No. 19131.) (Supreme Court of Missouri, Division No. 1. March 4, 1918.) 1. CARRIERS 318(2)-CARRIAGE OF PASSENGERS-NEGLIGENCE EVIDENCE. Evidence held not to show negligence of the "presence of mind," he could have stepped freight yards, where it provided a safe place for carrier in constructing and maintaining its down upon a steel beam that extended be-entering its caboose, notwithstanding an unsafe For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |