how much salt was making, and to oil the machinery up there, and I oiled the machinery in the vacuum room." The salt company was purchasing this apparatus for the purpose of economizing in the manufacture of salt, and it was to its advantage, no doubt, to have it properly installed upon its foundations supplied by itself and by labor furnished by it, and also to have appellee so instructed by the appellant through and by its expert in charge that, upon ac say whether such custom was proper and a sufficient exercise of reasonable care, or whether such care would call for inspection after receiving a boiler from the manufacturers, and, as a portion of the boiler head was in evidence, the jury could tell as well what conclusion to reach by examining it after the explosion as the witness could. In other words, the question does not call for expert evidence save in the slight degree furnished by witness' experience in handling boilers, and we think the objection was properly susceptance, he might be able to operate the aptained. Dow, Assignee, v. Julien, 32 Kan. 576, 4 Pac. 1000; St. Louis & S. F. Ry. Co. | v. Ritz, 33 Kan. 404, 6 Pac. 533; Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60. In Kansas Pac. Ry. Co. v. Peavey, 29 Kan. 170, 44 Am. Rep. 630, after quoting from People v. Morrigan, 29 Mich. 5: "The experience of courts with testimony of experts has not been such as to impress them with the conviction that the scope of such proofs should be extended. Such testimony is not desirable in any case where the jury can get along without it; and it is only admitted from necessity, and then only when it is likely to be of some value." This court held (page 179, 29 Kan., 44 Am. Rep. 630) that: "The matters upon which the opinions were given in the evidence objected to were on questions which could have been decided by the jury on the facts, and of the facts after a full hearing thereof they were the competent judges." Two matters remain for consideration: What duty did appellant owe to appellee? Were the findings of the jury properly sustained? It is clear that appellant had constructed the apparatus for the salt company for its own profit and advantage, and to its advantage and profit a successful installation and test would redound. Appellee was employed and directed by the salt company to go to the place and learn the nature and operation of the evaporator apparatus so he could become sufficiently proficient to operate it after it should be finally accepted. The expert who was to give him this knowledge was in charge of the apparatus and had 14 years' experience in erecting vacuum and evaporator processes, and in constructing steam fittings. Appellee was brought to him, and he, the expert, was told that he was going to learn to operate the machinery. Appellee began work May 23d, and was injured May 29th, having done in the meantime whatever he was directed to do by the expert in charge. The expert told him about what to do. "He told me to open and close valves in different parts of the machinery. paratus for the salt company. The enter- Reported in full in the New York Supplement; reported as a memorandum decision without opinion hands of an agent. The right of direction | found in substance that this casting, being covers, not only the general objects or meth- imperfect and too thin, became weakened by od of the work, but extends to every detail of it. The discretion of the servants is constantly subject to this control-a test which stamps him as a servant, and not as an independent contractor. A volunteer may become a servant, and subject himself to the duties and the rights attending the relationship if his services are accepted by the master, who personally, or through his duly authorized agent, acquiesces in the employment." expansion and contraction, and that the proper introduction of live steam caused the explosion. The contract with the company which furnished this casting to the appellant from specifications and drawings furnished by appellant called for a casting threefourths of an inch in thickness. The fragment in evidence is by actual measurement materially less than three-fourths of an inch thick at the thickest place where the seam appears, and is a scant three-eighths of an inch thick in the greater portions thereof. The testimony shows that the boiler head was not examined or tested save by hydraulic and steam pressure, appellant assuming that the old established and reputable concern which furnished it would not supply a defective casting. Appellant had by its engineer carefully made drawings and specifications assuming in the calculations a large factor of safety, and "took it for granted that the apparatus would be constructed according to the drawings." While the defective boiler head was painted, still the jury evidently believed, and we think justly, that by the exercise of reason ficiency of the casting, instead of assuming (84 Kan. 122) It is urged that two of the findings in particular are not supported by the evidence. These are numbered 8 and 22, and by one the jury decided that the appellant knew of a defect in the casting that burst before it did burst, and by the other that appelle's injury was such as to prevent him from performing regular labor such as he performed before the injury. He was allowed $1,000 for permanent injury. Of course, the only explanation of finding No. 8 is that the jury, having been instructed that means of knowledge is equivalent to knowledge, found the existence thereof, and the only trouble with the finding is that it confuses the effect with the means, the actual condition with the le-able care in actually examining into the sufgal result thereof. Had the finding been that appellant by the exercise of reasonable care could have discovered and known of the defect, no just fault could have been found. But there was the evidence, and there was the instruction, and the jury in substantial compliance with both, not being composed of lawyers or logicians, reached a conclusion, which, while technically susceptible of criticism, is substantially sound, and no reversible error was committed by permitting such finding to stand. The other finding is sa'd to be invalidated by appellee's testimony that he had gone back to work at his former task Under the statute providing that no conin a mill, and was earning the same wages veyance of real estate shall be valid, except as as before. But, considering the general ver- between the parties and as to those who have dict in his favor, his testimony as to pain actual notice, until it is deposited for record and suffering, itching, and nervousness, and (Gen. St. 1909, § 1672), actual notice may be express, when it consists of knowledge actuthe testimony of his physician that the itch-ally brought personally home, or it may be iming might or might not disappear, and would plied, when it consists of knowledge of facts make him nervous, we think the necessary so informing that a reasonably cautious person would be led by them to the ultimate fact. task of reconciling, if possible, this finding In the latter case the known facts must be with the general verdict, must result in hold- sufficiently specific to impose the duty to invesing that taken together they mean that ap- tigate further, and they must furnish a natural pellee, though at the time of trial earning clue to the ultimate fact. his former wages, was earning them less easily than before, and may later on be unable to earn them at all, or to earn as much. It is difficult to understand how one could undergo the injury detailed by him, and not be permanently disabled. A portion of the broken boiler head is in evidence. It shows that in its molding a cold shut or cold shot occurred-that is, the molten metal failed at one place to unite and blend perfectly-leaving a sort of seam which made its strength less than one of equal thickness perfectly molded. The jury (Supreme FARIS v. FINNUP et al. 1. VENDOR AND PURCHASER (§ 227*)-BONA [Fd. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 474-494; Dec. Dig. § 227.* For other definitions, see Words and Phrases, vol. 1, pp. 160-163; vol. 8, p. 7564.] 2. VENDOR AND PURCHASER (§ 227*)-BONA FIDE PURCHASERS-ACTUAL NOTICE. The statute referred to casts upon the grantee in a deed the duty of giving notice of his rights to subsequent purchasers. Such a purchaser may assume the nonexistence of any instrument which has not been made valid against him by filing it for record, and before a purchaser taking a warranty deed can be deprived of the benefit of this assumption information that a prior deed is in fact outstand ing and unrecorded must be quite definite and specific. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 474; Dec. Dig. § 227.*] 3. VENDOR AND PURCHASER ( 244*)-BONA FIDE PURCHASERS-NOTICE EVIDENCE. Under the evidence in this case, it is held that a purchaser taking title by warranty deed did not have actual notice of a prior unrecorded deed. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. § 244.*] Appeal from District Court, Finney County. Action by H. P. Faris against George W. Finnup and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed. B. F. Milton and C. E. Vance, for appellant. Hoskinson & Hoskinson, for appellees. BURCH, J. The only subject involved in this appeal is that of actual notice of an unrecorded deed under the act relating to conveyances of real estate, which reads as follows: "No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record." Gen. St. 1909, § 1672. T. C. Mitchell acquired title to the land in controversy by means of a tax deed dated October 23, 1899, and recorded October 24, 1899. Mitchell quitclaimed to H. P. Faris on May 1, 1900. This deed was not recorded until October 25, 1904. On February 14, 1903, Mitchell conveyed the land to George Lynn Miller, the deed being recorded March 5, 1903. On July 8, 1904, Miller conveyed to George W. Finnup by a warranty deed which was at once filed for record. In an action of ejectment brought by Faris the trial court held that Finnup was entitled to the land because when he purchased he had no actual notice of the unrecorded deed from Mitchell to Faris. Faris appeals. Three matters are relied on as affording actual notice of the appellant's unrecorded deed. In March, 1900, Mitchell brought suit against a large number of defendants, including the appellant, to quiet his title to a large number of tracts of land, including the one in controversy. On December 6, 1900, this suit was dismissed as to the appellant. The Mitchell deed to Miller was somewhat peculiar in form. It remised, released, and quitclaimed Mitchell's interest in the land in controversy and 30 other quarter sections, and then provided as follows: "The said parties of the first part hereby warrant to the said party of the second part against all conveyances made by the said parties of the first part, to any of said lands to the amount of the purchase price paid for said land." When the appellee purchased he knew of no outstanding interest, but he was told by Miller that the title was good except as to one quarter section which had some little defect which he would have fixed in a few days or in a week or so. quarter section was not specified. Actual noThe particular tice may be either express or implied; that is, it may consist of knowledge actually brought personally home, or it may consist of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. Pope v. Nichols, 61 Kan. 230, 59 Pac. 257. No claim of express notice to the appellee is made. Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigate further and when such facts fur Inish a natural clue to the ultimate fact. The appellee purchased upon a warranty of full title. Consequently he was not put upon inquiry like one who accepts a quitclaim deed. Rich v. Downs, 81 Kan. 43, 105 Pac. 9, 25 L. R. A. (N. S.) 1035. He could safely rely upon his vendor's warranty unless the public records disclosed the appellant's claim or unless cogent facts outside the records, duly brought to his attention, apprised him of it. Miller's statement was so utterly indefinite that it directed attention to nothing. It purported to relate to some small matter easily remedied, and not to something which went to the very foundation of the title. It opened no path leading to knowledge of any specific defect. Therefore no duty rested upon the appellee, in consequence of the remark, to look beyond the records and the facts suggested by possession. It is not pretended that the appellant ever held possession of the land. The record of the suit to quiet title afforded no suggestion that the appellant might own the land in controversy. There is nothing to connect his name with any particular tract of the many described in the petition, and the fact of dismissal as to him indicates that he made no claim to any of it, and so was misjoined, as definitely as it indicates anything. The appellee was required to take notice of facts appearing upon the face of recorded instruments in his grantor's chain of title. Knowles v. Williams, 58 Kan. 221, 48 Pac. 856. The deed from Mitchell to Miller covered many pieces of real estate, aggregating nearly 5,000 acres. All of them were in fact conveyed. The collateral contract of warranty contained in the deed did not affect the character of the instrument as a conveyance. Neither did this contract admit that the grantor had made previous conveyances of any of the lands. It merely provided for a return of the consideration for any tract should a previous conveyance of it be produced. What line of inquiry would such an instrument naturally suggest to a purchaser taking title under a warranty deed? He would go to the office of the register of deeds to see if any conveyances of his tract had been made. Finding none, he would be assured that it was not involved. He would not be | whose favor they should be enforced depends required to find Mitchell and interrogate entirely upon the facts of each case." The him. The law casts the duty upon the gran- expression in Rich y. Downs, 81 Kan. 43, 105 tee in a deed to give notice of his right to Pac. 9, 25 L. R. A. (N. S.) 1035, that one's third persons and not upon the grantor. Un- rights are not affected by the fact that his recorded deeds are invalid as to subsequent grantor held under a quitclaim deed only is purchasers without information that they the first clear attempt of this court to difhave been given, until they are deposited ferentiate between the grantee in a quitclaim with the register of deeds for record. Such deed and subsequent grantees who take with a purchaser may assume the nonexistence of notice thereof. Among the authorities cited any instrument which has not been made in support of this expression is Moelle v. valid against him in this manner; and before Sherwood, 148 U. S. 21, 30, 13 Sup. Ct. 426, a purchaser taking a warranty deed can be 429 (37 L. Ed. 350) in which Mr. Justice deprived of the benefit of this assumption, in- Field said: "Whether the grantee is to be formation that a prior deed is in fact out- treated as taking a mere speculative chance standing and unrecorded must be quite def- in the property, or a clear title, must depend inite and specific. upon the character of the title of the grantor when he made the conveyance; and the opportunities afforded the grantee of ascertaining this fact and the diligence with which he has prosecuted them, will, besides the payment of a reasonable consideration, determine the bona fide nature of the transaction on his part." If a grantee in a quitclaim deed from his immediate grantor is put upon notice and charged with a search for outstanding equities such as an ordinarily prudent man would be required to make, his grantee who knows the sort of title the grantor has must certainly take with the same notice and he should take with the same burden. claim whatever to a piece of real estate may Otherwise one having no substantial execute a quitclaim deed therefor to B., and B. by making a warranty deed therefor to C., who has knowledge of the quitclaim, may make of C. a bona fide purchaser which B. was not. The appellant cites a case in which a deed expressly excepted and reserved from the grant lands which had previously been conveyed. Adams v. Hopkins, 144 Cal. 19, 77 Pac. 712. The only question determined in respect to that instrument was, however, the scope of the grant. The question of notice was not passed upon and it was held that the words "previously conveyed" were used in the sense of "previously sold." The judgment of the district court is affirmed. JOHNSTON, C. J., and SMITH, PORTER, and BENSON, JJ., concurring. MASON, J., not sitting. WEST, J. (concurring specially). I concur in the result of the foregoing decision, but cannot assent to the doctrine that from nothing something can be evolved. It is held in this state that the grantee in a quitclaim deed from his immediate grantor is put upon inquiry by the very fact that it is a quitclaim, and this rule is founded on common sense and practical experience in this state, in the western portion of which one's land is often spoken of as so many "quarters" instead of so many acres, and where real estate is handled very much as chattels are handled. Such grantor can convey no better title than he has; true, he may make a contract with his grantee that he will. warrant and defend him against any outstanding title or equities, but this does not and cannot increase the force of the conveyance itself or the estate actually passed thereby. Much confusion has arisen from failure to distinguish between a mere quitclaim and an instrument improperly called a quitclaim which amounts to an actual conveyance and passing of the estate itself. The marrow of the matter is well stated in Fountain v. Kenney, 71 Kan. 642, 81 Pac. 179, where Mr. Justice Greene said: "The determination of what equities are prior in right to the holder of the real estate under a quitclaim deed The object of the recording act is to protect those who deserve protection, but not to aid in what might be called larceny of real estate, or in the manufacture of titles out of nothing. A quitclaim grantee may act in perfectly good faith, but he, as well as his grantee, should be required to make reasonable inquiry as to what reason existed for making a quitclaim instead of a warranty deed. It may as well be conceded that the numerical weight of modern authorities tends to support this peculiar distinction between immediate and subsequent grantees; but the reasoning of such decisions as Carter v. Wise, 39 Tex. 273, Milam County v. Bateman, 54 Tex. 153, Schmidt v. Musson et al., 20 S. D. 389, 107 N. W. 367, and Mason v. Black, 87 Mo. 329, commends itself for its soundness. In the latter may be found a quotation from Lord Hardwicke, which has lost none of its force by lapse of time: "Where the purchaser cannot make out a title, but by a deed which leads him to another fact, the purchaser shall not be a purchaser without notice of that fact, but shall be presumed cognizant of it; for it is crassa negligentia that he sought not after it." (84 Kan. 110) negligence of the plaintiff, negligence of cerGRECO v. WESTERN STATES PORTLAND tain fellow servants who it alleged had careCEMENT CO. (Supreme Court of Kansas. Feb. 11, 1911.) (Syllabus by the Court.) 1. NEGLIGENCE (§ 119*)-ISSUES-PLEADING. In an action founded upon negligence, the plaintiff must recover upon some act of negligence alleged in the petition and submitted under proper instructions to the jury. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. § 119.*] 2. NEGLIGENCE (§ 142*)-REVIEW-REVERSAL -DETERMINATION OF ISSUES NOT PLEADED. In such an action, where the court instructs the jury that they may consider only certain -acts of negligence claimed, and the jury return a verdict in favor of the plaintiff and a special finding that the negligence which was the proximate cause of the injury was something not alleged in the petition nor included within the claims of negligence to which the instructions restricted the jury, the general verdict will not be permitted to stand, and the judgment will be set aside and a new trial ordered. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. § 142.*] Benson and West, JJ., dissenting. Appeal from District Court, Montgomery County. Action by Matteo Greco by Pietro Greco against the Western States Portland Cement Company. Judgment for plaintiff, and defendant appeals. Reversed. The plaintiff, a young man of 19 years of age, while in the employ of the defendant, received injuries which he claimed were caused by the defendant's negligence. He recovered a judgment of $3,800, from which the defendant appeals. lessly and without regard to their instructions removed a part of the covering from the conveyor, with the knowledge and consent of the plaintiff, and the further defense that the injury resulted from a risk which the plaintiff had assumed. The court charged the jury that the allegation were as follows: "(1) The defendant had tions of negligence complained of in the petinegligently permitted the covering of the conveyor at the place where he was injured to get out of repair by becoming worn and rotten; (2) that the defendant had negligently failed to place a railing around such covering to protect plaintiff and others in defendant's employ from falling through and into the conveyor, and to otherwise guard against injury there by the use of safe appliances, guards, or rails; and (3) that defendant negfailing to inspect said covering, and keep it in lected its duty to plaintiff by negligently repair, and free from possible defects." The court then used this language: "These then, briefly stated, are the acts of negligence alleged against defendant, to which the plaintiff must be restricted in his effort to recover against the defendant in this case, and to which you should confine yourselves in your investigation of the question as to whether or not the defendant was guilty of negligence toward the plaintiff. "You are instructed that there has been no evidence at this trial showing that the covering over the conveyor at the place where the plaintiff was hurt was out of repair, or that it was worn or rotten; and therefore on these allegations of negligence you must find against the plaintiff.” At the time he was injured he was at work in what is called the dry room and was sweeping the floor. In the center of the floor there was a trough 3 feet wide and 18 inches At another place in the instructions the deep of concrete, the material of which the court in defining the issues had stated as one floor was constructed. In this trough was of the claims of the plaintiff: "That said a conveyor consisting of a steel screw or conveyor was about three feet wide and worm operated by a belt and used for the eighteen inches deep, and that it had a woodpurpose of conveying the product from the en covering thereon, that there was a trapstone drier to another part of the mill. door therein which was not fastened or There was a wooden cover to the conveyor screwed down, and that to keep it in place made in sections so that the covers could be on the top of the conveyor wooden slats or lifted in order to clean out the conveyor or extensions were constructed, which fitted into to see what condition it was in. They were a groove or shoulder along the top of the made with cleats to fasten down and fit in- conveyor, so that, when the trapdoor was in side the box so as to form a solid cover prac- place, the top thereof was completely covertically on a level with the floor. The petitioned, and there were no hooks or catches, eialleged that the plaintiff was unfamiliar ther of wood or steel, to said door to keep it with the room, its fixtures, or the location in place on the top of said conveyor." This of the cover or trapdoor; that while sweep- instruction substantially follows the laning the dust and dirt from the floor he step- guage of the petition. ped upon one of the covers which had been In the opening statement of the plaintiff, carelessly permitted to "become worn, rot- counsel said that, "while performing his duty ten, and out of repair," by reason of which and sweeping toward the dry mills, he stepit gave way, causing his foot to go through ped on this trapdoor, which is a part of the and inside of the conveyor, where it was covering of the conveyor, and the door, becaught and crushed by the screw, making it ing rotten and decayed and worn out and necessary for the foot and ankle to be am- not properly constructed, fastened, or screwputated. The answer set up contributory ed down to prevent it from slipping when |