[2] Plaintiff offered no direct evidence with reference to the contract. Her evidence tended to show, however, that Lawhon was engaged in digging a sewer for defendant; that an agent of defendant, who was exercising a supervisory control over its plant and premises, was at all times present, giving orders and directions with respect to the manner in which the work was to be done, and that these orders were complied with by

servant, and not as a contractor, "then the sewer depended upon the contract between only duty which would have been owing to them. him * * * by the defendant would be the exercise of ordinary care for his safety, and, if the deceased was more accustomed to the work of digging and making trenches than defendant and its employés who were about the premises at the time the work was being done, then it was the duty of the said Lawhon, if any danger became apparent, to complain of the danger and get out of the trench until the danger was obviated." The verdict and judgment were for defend-Lawhon and his colaborer, Hosford. ant. Plaintiff appeals.

Appellant assigns as error the giving of defendant's instructions D, E, and F, and the admission of the testimony of the two Holkenbrinks, Crane, and Fisher with reference to the contract under which Lawhon undertook the work on the sewer.

I. While this case presents the usual features of an ordinary negligence case, the contested issue was whether Lawhon, with respect to the work in which he was engaged at the time of his injury and death, was a servant of the defendant, or whether he was an independent contractor. The existence of the relation of master and servant was an essential element of plaintiff's case, and she properly assumed the burden of establishing it. Defendant countered with evidence tending to show that, by virtue of the terms of the contract under which he was working, Lawhon was an independent contractor.

Appellant complains of defendant's instructions D and E, on the ground that they did not furnish the jury with the proper criteria for determining whether deceased was an independent contractor, as distinguished from a servant. Respondent replies by saying that the judgment should be affirmed regardless of errors in the instructions because plaintiff failed to make a case for the jury on the question of whether deceased was a servant of defendant.

This

evidence was sufficient to warrant the inference, not only that there was a contract of employment, but that the defendant had therein reserved the right to supervise and direct the manner of executing the work in detail.

[3, 4] It is clear that defendant's instruction D did not embody a proper direction to the jury, under the evidence in the case. It could be true that Lawhon "contracted and agreed to build a sewer as indicated by the stakes" set by Judson, and yet defendant haye had the right under the contract to order and direct the method and manner of performing the work during its execution. Instruction E is subject to like criticism. If Lawhon was to receive $75 for doing the entire work, and was to furnish all the necessary labor, these features of the contract would be persuasive that the parties intended that Lawhon should be subject to defendant's control "only as to the results of the work," but they would not be conclusive. O'Neill v. Blase, supra; Kiser v. Suppe, 133 Mo. App. 19, 25, 112 S. W. 1005.

[5, 6] Instruction F told the jury, in effeet, that, if Lawhon had had more experience in digging trenches than defendant's employés who were about the premises at the time the work was being done it devolved upon him, and not them, to discover the danger of the earth caving in before the event [1] It is frequently difficult to determine happened. In doing so it entirely ignored whether an employé is a servant, or an inde- the evidence on the part of plaintiff which pendent contractor. A servant, according to tended to show that defendant, through its the great weight of authority, is a person vice principal, promised Lawhon that it who is subject to the control of his employ-would watch the sides of the trenches during er with respect to the manner in which the the progress of the work, and brace them if details of the work are to be performed. they showed any tendency or danger of cavO'Neill v. Blase, 94 Mo. App. 648, 68 S. W. ing. If such assurance was given, then Law764; Gayle v. Mo, Car. Co., 177 Mo. 427, 76 hon, notwithstanding he may have been an S. W. 987. And it is said that the exercise experienced workman, had a right to rely or nonexercise of control of this character upon it and to continue at work in the trench, by the person alleged to be the master is the unless and until the danger became so obvielement which must, in the last analysis, al-ous and imminent that no ordinarily prudent ways determine what was the essential nature of the relationship between the person who performed the given work, and the person for whom it was performed. 1 Labatt, Mast. & Serv. 56. Whether Lawhon was subject to the orders and directions of the defendant with respect to the performance of the details of the work of constructing the

person would have remained longer therein. Moore v. Railroad, 85 Mo. 588; Scullane v. The Kellogg, 169 Mass. 544, 48 N. E. 622. instruction in disregarding this essential feature of plaintiff's case was erroneous.

[7] II. Dr. Frederick W. Holkenbrink was incompetent to testify to the arrangement he made with Lawhon for digging the sewer.

(252 S.W.)

Notwithstanding he was acting for defendant, | SMALL, C. I. Suit in equity by some he was "one of the original parties to the of the heirs of James R. Ransberger, decontract * in issue and on trial" un- ceased, to set aside a conveyance made by der the statute as we have construed it. him to defendants McLennan, as husband Banking House v. Rood, 132 Mo. 256, 262, 33 and wife, and to cancel a deed of trust given S. W. 816. See, also, Taylor v. George, 176 by them to secure a note for $44,250 as part Mo. App. 215, 161 S. W. 1187 and cases cited. payment for the 3854 acres of land in said Nothing in the record suggests the disquali-county conveyed to them by said Ransberger, fication of either Crane or Fisher as a wit- and to require defendant Adolphus Ransness. Nor was Will Holkenbrink incompetent | berger, administrator of the estate of said to testify as to the transaction between Dr. James R. Ransberger, deceased, to redeliver Holkenbrink and Lawhon, as he was in no to said defendants McLennan said note for way a party to it. But he was not competent $44,250, and another note of $15,000 executed to testify to conversations or transactions by D. R. and Suetta Sprinkle, given to said which he, as defendant's acting manager, James R. Ransberger as the balance of the had with Lawhon with respect to the prose consideration for the conveyance, There cution of the work, if there were any such was judgment for plaintiffs, from which deconversations or transactions. The record fendants appealed. is by no means clear as to the extent of the The grounds upon which said conveyance powers intrusted to him during his brother's was asked to be set aside were: That said absence. Leavea v. Railroad, 171 Mo. App. James R. Ransberger was unduly influenced, 24, 153 S. W. 500; Id., 266 Mo. 151, 181 S. W. overreached, and defrauded in making said 7, L. R. A. 1916D, 810, Ann. Cas. 1918B, 97. conveyance by said defendants McLennan, by For the errors noted, the judgment is re-reason whereof they acquired said land "for versed, and the cause remanded.

the inadequate consideration of $63,000, which sum was more than $40,000 less than

All concur, DAVID E. BLAIR, J., in result. the value of said farm," and that said Rans

RANSBERGER et al. v. MCLENNAN et al.

(No. 22795.)

berger was diseased in body and mind, and did not have mental capacity sufficient to resist said defendants' influence or to comprehend the nature of the transaction made by him.

The answer, besides containing a general (Supreme Court of Missouri, in Banc. May 22, dental, admitted the execution of the deed,

1923.)

Deeds 211(1)-Evidence held insufficient to warrant setting aside conveyance because of fraud and undue influence.

In an action to set aside a conveyance by deceased and cancel a deed of trust accepted by him on the ground of undue influence and fraud, evidence held insufficient to warrant the relief sought.

Woodson, C. J., and Graves, J., dissenting.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Ideed of trust, and notes mentioned in the petition, and set up other facts appearing in the evidence as an affirmative defense. The answer admitted that Dr. McLennan wrote the deed sought to be set aside and deed of trust for $60,000 first executed by the McLennans, but alleged that he only did so because Mr. James, the attorney for James R. Ransberger, was absent from his office, and that the failure to make the deed of trust subject

to foreclosure on failure to pay interest when

due was an inadvertence. That said note and deed of trust for $60,000 was afterwards Action by Thomas J. Ransberger and oth-canceled with consent of plaintiffs, and the ers against Thomas A. McLennan, Adolphus Ransberger, administrator of the estate of James R. Ransberger, deceased, and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to render judgment for defendants.

W. H. Meschede, Harvey & Bellamy, and Albert R. James, all of Marshall, and Lamm, Bohling & Lamm, of Sedalia, for appellants. Robert M. Reynolds and Alf F. Rector, both of Marshall, for respondents, except Marie and Lillie Ransberger and Mabel Frazier.

A. B. Hoy, of Marshall, guardian ad litem for minor respondents, Marie Ransberger, Lillie Ransberger, and Mabel Frazier.

$44,250 note and $15,000 note and deed of trust mentioned in the petition substituted therefor.

The evidence shows the following facts are not seriously disputed:

For many years prior to his death James R. Ransberger, with his two brothers, William and Benjamin, the latter spoken of in the testimony as "Doc," owned and lived on the farm in controversy, all of them being unmarried, keeping "batch," and engaged in farming under the firm name of James Ransberger & Bros. The active management of the business and farm for many years, until their death, had been by William and Benjamin. William died intestate on July 20,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 252 S.W.-4

(252 S. W.)

The court refused to permit several of the above witnesses to answer whether said James R. Ransberger was of sound mind on the ground that they had not testified to sufficient facts concerning his mental condition, to qualify them to give their opinion thereon. None of above witnesses testified he was of unsound mind.

because he worked for his brother Adolphus, hands, and refer to his trip to the Springs as Mrs. McLennan's father, when she was a his "bridal" trip. He talked aloud to himchild, and that he held her on his knee, and he self at night, which would often awaken the wanted to favor her. That he sold the farm witness, who was at his house while Benjafor less then it was worth for that reason. min was sick. James still had the same peHe did not say anything about favoring the culiar expression in his eyes when he came to doctor. see Benjamin, who was sick at the house of the witness, where he died. James was growing more feeble all of the time. He never attended to any business. Benjamin was the business manager, and attended to all business at the farm. James was cook and housekeeper, and had no business experience whatever. Dr. McLennan was the family physician of the Ransberger brothers. Dr. A. E. Gore testified for plaintiffs: That James would often say, "They say I am he attended Benjamin during his last sick-crazy." He would get all worked up. In the ness at Mrs. Cowan's home in Marshall, fall of 1918 he appeared to her as a person where he saw James occasionally. He also losing his mind. He was not crazy, but his saw him at his office, where James called to mind was getting weak, childish. He was all make inquiry about his brother. He talked stooped over. He went to live at the Mcwith him some eight or nine times. In the Lennans' home near the 1st of January, 1919, opinion of the witness, he was rather weak- and lived there until he died. Before that he minded, but witness would not make a dog-frequently came to see her, but did not come matic answer to that question. He was physically weak. James told witness that he and his brother Benjamin had made cross wills, and that on Benjamin's death the farm would be his. He said his relatives need not worry about the condition of his property. He manifested an acute brotherly affection for Benjamin, and came to see him almost every day, and bemoaned the fact that he was about to lose his brother. On one occasion he told the doctor he was going to keep the farm as long as he lived, and at his death it would be for his heirs.

after that. While there he made two trips to Excelsior Springs with defendant Violet McLennan. After Benjamin's funeral James and defendant McLennan wanted witness to take something for waiting on her brother, Benjamin, but she refused. Afterwards, without her knowledge, a check signed by James, filled in in the handwriting of T. A. McLennan, for $750 was left to her credit at the bank.

Thomas Ransberger, a brother of the deceased, and one of the plaintiffs, and Mrs. Jennie Ransberger, the widow of a deceased

nephew, and James Staples, an employee of James R. Ransberger, testified substantially to the same facts as Mrs. Cowan, except as to the giving to her of the $750 check. Thomas Ransberger also testified: That in the fall of 1918 James told him that Violet (Mrs. McLennan) told him that she was going to have to take a job in the courthouse, and he said to her that he guessed she would get a job of sweeping out, and she replied to him, "You dog, you!" James often referred to this conversation, which seemed to worry him very much. Finally, one evening, in talking about it, he said he made it all right with Violet; that "he had brought tears to her eyes"; and never mentioned it afterwards.

Dr. Nuckles, osteopath, testified for plain-brother, Robert Ransberger, Albert Baker, a tiffs: He gave James 24 treatments in the fall and winter of 1918-1919. He had rheumatism, badly bent forward, almost at right angles; suffered much pain; physical condition was very bad; mental condition feeble. His treatments did not do him appreciable good. He told the doctor that he never had much experience in handling business, and that he was going to turn his business over to Albert James (his attorney) to look after. "He talked perfectly rational and perfectly sensible." He quit going to the doctor because he was doing him no good. The doctor's charges were $48, which James objected to paying as being too high for what he had done for him. The result was he paid the doctor $40 in settlement by check filled out by the doctor, but signed by him. He came to the doctor's office alone. The last visit was November 6, 1918.

Staples also testified: That, after Dr. McLennan was at the farm on Saturday eve ning, prior to the Sunday when James told him that he was going to leave the farm, he said that the McLennans wanted to get him away, and he was going to quit the farm and go live with them. He also testified to falling out with James after the death of his brother Benjamin, and being discharged After by him, which witness said was without cause.

Mrs. Rolla Cowan, sister of James, testified: He was never robust, and was normally a quiet man. In August, 1918, she noticed a change. His health had been failing since William died. He complained of rheumatism, sleeplessness, and nervousness.

he returned from Excelsior Springs he would all of a sudden break out in a laugh, clap his

Mrs. Thomas also testified that her Uncle

James said: "I believe this old cane is the best medicine that Dr. McLennan has ever given me."

Frank Pelot, a witness for plaintiffs, testified: That he took the acknowledgment of James R. Ransberger to the deed in question and of the McLennans to said $60,000 deed of trust at their home on February 14, 1919. Dr. McLennan told him that Mr. Ransberger was selling them his farm, and he got the papers, and handed the deed to Mr. Ransberger. The deed was not read out loud by any one. Dr. McLennan handed it to James, and told him to look at it. No one read the note or deed of trust over while he was there. Dr. and Mrs. McLennan were both in the room when the deed was signed. Did not know whether Ransberger read the deed. He looked at it a short while, when it was handed to him, but made no comment; simply signed and acknowledged it, and handed it over to the witness.

Several witnesses for plaintiff also testified that Dr. McLennan was a shrewd trader and business man; also that the farm in question at the time it was conveyed to the McLennans was worth from $250 to $275 per acre. Defendants' witnesses said it was worth from $225 to $275 per acre.

sell at the price I did?" Witness replied that he had a right to give it away if he wanted to; that it belonged to him. Witness also said that Mr. Ransberger seemed to have perfect confidence in Dr. McLennan. S. B. Burks, probate judge of Saline county, testified: That after the insanity inquiry was instituted James R. Ransberger came to his courtroom and told him that some of the heirs had started the proceeding because he had made the conveyance to the McLennans, and he asked if Judge Burks did not think a man had a right to do with his property as he pleased; that the property belonged to him; that he helped work, and helped make it; that he "milked" so early that he "never saw the color of the cows except on Sunday mornings," and that Viola (Mrs. McLennan) was his favorite niece, that he loved her better than any of the balance, and had a right to give her more, and in making the sale of the land he took that into consideration. That he talked perfectly rational, and gave a detailed history of his property, and how he made it, "that mighty few men as old as he could give." F. C. Barnhill, cashier of the Wood & Huston Bank, testified: That Ransberger Bros. kept their account in his bank. About March 1, 1919, James R. Ransberger came to the bank with his federal income tax return, and witness helped him make it out. Mr. Ransberger had his bank book with him covering the year 1918. It showed 15 or 16 deposits during that year. Mr. Ransberger identified every deposit, told what it was for, and who paid it. He had known Mr. Ransberger for years, and never saw anything to indicate that he was wrong in his mind. James R. Ransberger signed all the checks on the bank after the death of Benjamin, but most of them were filled out by others, a few by the McLennans.

Evidence of defendants on disputed points: Fifteen witnesses, none related to the parties except Herbert Ransberger, testified: That after the insanity proceeding was instituted (and some of them before) they had conversations with said James R. Ransberger at different times, and not in the presence of either of the McLennans, wherein he told them about the deed to the McLennans. He said he wanted Mrs. McLennan to have the land. She was his favorite niece. That he knew he sold it to them for less than it was worth. He did so because he wanted to favor them, especially Mrs. McLennan. He also requested most of said Drs. M. T. Chastain, G. S. Harding, J. R. witnesses to testify for him in the insanity Hall, and B. F. Manning all testified: That proceeding, to which they agreed. Nearly they were regular practitioners in Marshall, all of said witnesses-all of them who were and had known James R. Ransberger for interrogated on the point-testified from years. That they saw him after the insanlong acquaintance with said James R. Rans-ity proceeding had been instituted, at the berger that he was at all times of sound McLennan home, where he then resided, and mind, although weak in body. William Leonard, one of said witnesses, also testified that his conversation with James R. Ransberger was while the McLennans had under consideration the purchase of said land from him; that Ransberger told him that Dr. McLennan said that he could not afford to buy the land, and that Mr. Ransberger told him that he said to Dr. McLennan he would make it so he could buy it put the price at $63,000, and give them a long time to pay for it. That he knew he was not getting the value of the land, but was willing to put it at that price. He asked Leonard, "Do you think I did wrong in doing that, or do you think I had a right to

at his request, as well as that of Dr. McLennan, they conversed with him, and observed his physical and mental condition. That he was physically feeble, but his mental condition was normal and sound. He told each of these doctors all about his conveyance to the McLennans, giving the same reason therefor as to the other witnesses, to wit, that he sold it to them at the price he did because Mrs. McLennan was his favorite relative, and he thought more of her than of any of the rest of them.

Adolphus Ransberger testified: He was the oldest of the seven Ransberger brothers, being 74 years old. Mrs. McLennan was his daughter, born in 1877. His brother James