SHELTON V. KIRKSVILLE LIGHT, POWER
& ICE CO. (No. 16368.)
(Supreme Court of Missouri, Division No. 2.
May 26, 1914.)

He knew as to the primary and secondary wires; knew their voltage. He was provided with tools. We are supposed to furnish the men with tools in doing their work. They are furnished tape. Black tape used for wrapping wires. It's insulating tape. It is used on

1. MASTER AND SERVANT (§§ 119, 213*)-INJU-joints that are bare, and such places as that. RIES TO SERVANT-ELECTRIC LINEMAN-CARE REQUIRED OF MASTER-ASSUMED RISK.

The degree of care required of an electric company and the extent of the risk assumed by by the terms of his employment, the rules or custom of the company as to inspecting wires, or other special circumstances affecting the duties and obligations of one or both of the parties.

a lineman are to be measured and determined

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 210, 559-564; Dec. Dig. §§ 119, 213.*]

2. MASTER AND SERVANT (§ 217*)-DEATH OF SERVANT-ELECTRIC LINEMAN-DUTY TO IN

SPECT.

If Mr. Shelton would have discovered a bare joint on one of the wires when he went up the pole, or on more than one of the wires, it ed it-fixed it. I know of him using tape on would have been good practice to have repairjoints before somewhere on the line. I directed him to look after these places along the line. That was one of the things that was his busiformation as to the condition of the wires, reness to look after. As superintendent I got insaw and what people would telephone to me. ported to me by people, employés, and what I The linemen would look after defects and report them to me; that was a part of their business."

The testimony for plaintiff also showed that the insulation was off the wires in places at or near the pole and cross-arms. At the close of plaintiff's evidence, and again at the close of all the evidence, the defend

Where defendant electric light company properly required its linemen to inspect and repair wires from which the insulation had been worn, and furnished tape to linemen for that purpose, decedent, an experienced lineman in defendant's employ, assumed the risk of inju-ant asked an instruction in the nature of a ries sustained by coming in contact with a heavily charged wire from which the insulation had been removed, and hence no recovery could be had for his resulting death.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. § 217.*]

demurrer to the evidence, which was refused. The cause was submitted on instructions for both sides, and there was a verdict for the defendant.

L. F. Cotty, of Edina, and J. A. Cooley and Weatherby & Frank, all of Kirksville, for

Appeal from Circuit Court, Knox County; appellant. Campbell & Ellison, of Kirksville, Charles D. Stewart, Judge. F. H. McCullough, of Edina, and Higbee &

Action by Harry Shelton, as administra-Mills, of Kirksville, for respondent. tor of the estate of John Shelton, deceased, against the Kirksville Light, Power & Ice Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is a suit for $10,000 damages by reason of the death of John Shelton. There was a verdict and judgment for defendant, and plaintiff appealed. The deceased was an experienced lineman in the employ of defendant, and was, at the time of his death, engaged in stringing a new wire on a pole of defendant, on which were five cross-arms and many wires carrying a deadly current of 2,300 volts. He came in contact with those wires and was instantly killed. The petition alleged negligence in permitting the insulation on those wires to become and remain defective, decayed, and insufficient. The answer pleaded contributory negligence, and alleged that the deceased was an experienced lineman, and knew and assumed the risks incident to the employment. It also alleged that it was the duty of the deceased to inspect and keep in repair the wires at the point where he came in contact with them. The reply was a general denial.

Mr. J. W. Moore, defendant's superintendent, called by plaintiff, was put on the stand and testified as to the circumstances of the

death. On cross-examination he testified: "There was nothing I knew of concealed or hidden from Mr. Shelton. Everything was visible. He could have told to a certainty whether or not there was insulation on the wires.

ROY, C. (after stating the facts as above). [1] I. The demurrer to the plaintiff's evidence should have been sustained. 2 Joyce on Electric Law, § 657, says:

"The degree of care required of the company and the extent of risk assumed by the linemen are to be measured and determined in each case by the terms of the employment, the rules of the company as to the duties of linemen, or the custom of the company as to inspection of the duties and obligations of one or both parpoles, or other special circumstances affecting ties."

That rule is indorsed by the following authorities: McGuire v. Bell Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; McGorty v. S. N. E. Telephone Co., 69 Conn. 635, 38 Atl. 359, 61 Am. St. Rep. 62; Cum. Telephone Co. v. Loomis, 87 Tenn. 504, 11 S. W. 356; Britton v. Central U. T. Co., 131 Fed. 844, 65 C. C. A. 598; Barto v. Iowa Tel. Co., 126 Iowa, 241, 101 N. W. 876, 106 Am. St. Rep. 347; Krimmel v. Edison Il. Co., 130 Mich. 613, 90 N. W. 336; New Omaha T. E. L. Co. v. Rombold, 68 Neb. 54, 93 N. W. 966, 97 N. W. 1030; Consol. Gas Co. v. Chambers, 112 Md. 324, 75 Atl. 241, 26 L. R. A. (N. S.) 509. So far as we can find no case holds the contrary. There is no case in this state squarely in point, except Rutledge v. Swinney, 170 Mo. App. 251, 156 S. W. 478, which supports the rule above stated.

In Roberts v. Telephone Co., 166 Mo. 370, 66 S. W. 155, the lineman was engaged in

the work of inspecting and repairing at the decisions, and others can be found referred to time of the injury, and it was held to be his in the note and cases we have mentioned. duty to inspect for the defect which caused While the facts necessarily differ in them, the general rule to be deduced from them may be the injury. In this case the deceased was thus stated: When the employer has no indenot engaged in the work of inspection and pendent system of inspection of poles, crossrepair; but, under the above rule and the arms, steps, etc., and the lineman has no reaconceded facts in this case, he was bound to had no right to rely on the employer for such son to believe that such inspection is made, he inspect for his own safety. He was required inspection, but must make such tests himself as by the direction and rules and custom of may be necessary to ascertain whether it is the company to make such inspection. In safe to go upon them, and cannot hold the employer responsible Corby v. Telephone Co., 231 Mo. 417, 132 S. him by such poles, cross-arms, or steps giving for injuries received by W. 712, the foreman was at the foot of the way, unless there was some defect in them pole as the superintendent was in this case. when they were originally placed in position, or But the injury in that case was by reason fect, which was not communicated to the linethe employer had some knowledge of the deof a defective pole, which it was the duty of man-provided, of course, the lineman is not the foreman to inspect. In this case the de- such an inexperienced person as is entitled to fect was not in the pole, but in the insula-be instructed as to the danger. Of course, tion of the wires. Their inspection fell upon rule; but we find nothing in this record that there may be some exceptions to such a general the lineman. He was in a better position to would take the case out of it. There is more inspect than was the superintendent. His reason to apply such a rule to cross-arms than own witness testified that the company reto poles, for there are usually so many more of them, and, as said in Flood's Case [131 N. Y. quired him to make such inspection, that it 603, 30 N. E. 196] supra, inspectors were not was a part of his business, and that he was expected to climb up every pole and examine furnished with tape to repair the insulation. | the arms thereon. Such an inspection would [2] Appellant says that the duty to fur- Indeed, it is far safer for the linemen thembe manifestly impracticable and unnecessary.' nish a safe place in which the servant may selves to make the inspection and such tests as work is an absolute, nondelegable one, and may be necessary for their safety, as they that the duty of inspection cannot be thrown would do so at the very time they went upon them, while in many instances that would be on the servant. That rule may be conceded; impossible if separate inspectors were relied but, like most general rules, it has its ex- on.' ceptions. Those exceptions are based on the special circumstances which do away with the reason of the general rule. In Knorpp v. Wagner, 195 Mo. loc. cit. 663, 93 S. W. 961, it was held that a drillman in a mine could be required to inspect his own drill holes for his own preservation, citing Livengood v. Lead & Zinc Co., 179 Mo. 229, 77 S. W. 1077; Fisher v. Lead Co., 156 Mo. 479, 56 S. W. 1107. In Modlagl v. Iron & Foundry Co., 248 Mo. 587, 154 S. W. 752, it was held that a blacksmith was bound to repair his own tools. Woodson, J., said:

In Britton v. Central U. Telephone Co., 131 Fed. 844, 65 C. C. A. 598, Judge (now

Justice) Lurton said:

skill of a kind not presumably required from a "The case might be altogether different, if lineman in the usual course of his calling was necessary to apply the tests reasonably sufficient in such cases."

In Krimmel v. Edison Il. Co., 130 Mich. 613, 90 N. W. 336, it was said:

"The rule as to the duty of the employer is well settled, but the trouble comes in the application of the rule in a given case. In none "In the case at bar, the repair of the tools of of the cases cited by counsel was it shown, as the shop was simple, and could be readily and in this case, that it was the custom of the comeasily made by any blacksmith. In fact, I nevpany to have the inspection made by the person er knew or never before heard of one black-injured, before he entered upon his work, and smith repairing these simple tools for another. that it was part of his duties to make the inWhat would be the sense in taking a broken or spection." damaged tool from one blacksmith shop to anWe therefore hold that the rule is, as statother to have it repaired, or hand it to another smith in the same shop for that purpose, when ed by Joyce, that the duty to inspect for his both are engaged in precisely the same work, own safety may be imposed upon the lineboth for the master personally and for the masman by the terms of his employment or by ter's patrons. To hold, in the case at bar, that the custom or rules of the company. As dethe battered chisel, mentioned in the evidence, should have been taken to another shop or hand- fendant's demurrer to the evidence should ed to another, Schuler, plaintiff's fellow servant have been sustained, it is needless to discuss in the same shop, for repairs, would not amount questions as to alleged error in the other to respectable nonsense, yet if we follow the contention of counsel for plaintiff to its logi-instructions. The verdict was for the right cal conclusion, that would be the inevitable re- party, and should be upheld. Bradley v. Tea sult, or we would be forced to hold the defend- & Coffee Co., 213 Mo. 320, 111 S. W. 919. ant is liable in this case for having failed to do that nonsensical thing."

That is language similar to that used in Consol. Gas Co. v. Chambers, 112 Md. loc. cit. 334, 75 Atl. 241, 26 L. R. A. (N. S.) 509, supra, where it was said:

"Many other cases might be cited, but those above are sufficient to show the trend of the

The judgment is affirmed.

WILLIAMS, C., concurs.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All concur.

ty; that at the time of the final settlement of said estate defendant was administrator of

BARNETT v. KEMP. (No. 16024.) (Supreme Court of Missouri, Division No. 2. same, and in said year, as such administra

May 26, 1914.)

1. WITNESSES (§ 159*)-TRANSACTIONS WITH DECEDENT.

In an action by the administrator of a mother against her son, with whom she lived, for an accounting of his acts as her agent, it appearing that no books had been kept, the court properly refused to permit the son to testify as to his oral accounting to her as to each item of business done.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 629, 664, 666-669, 671-682; Dec. Dig. § 159.*]

ING OF SUIT. Statements by a son to his mother's administrator, who had formerly been his attorney, that he was indebted to the estate and liable to account as his mother's agent, did not estop him to deny any debt or liability in a suit for such accounting, after employment of other counsel and fuller information as to his rights; the bringing of a suit not being a change of position on the part of the administrator.

tor, made a final settlement of said estate, and in same there was found to be due Sarah Kemp, the widow and sole legatee of deceased, the sum of $6,667.42; that at the time said Sarah Kemp was infirm from age, and remained so until her death, which occurred in the early part of 1908; that during this time she lived with her son, the defendant, as a member of his family, and constituted him her agent to conduct and manage all of her business; that by reason of the con

2. ESTOPPEL (§ 56*)-EQUITABLE ESTOPPEL-fidence reposed by her in the defendant a ELEMENTS-CHANGE OF POSITION-BRING- fiduciary relation was created between them, and that defendant managed and controlled her property, received the proceeds thereof, and paid out whatever was necessary for her support, and made the expenditures necessary in the conduct of her business; that upon the final settlement of said estate by defendant, as such administrator, there was turned over to him as agent for his mother, the sum of $6,667.42, to be held and managed by him for her use and benefit. That Sarah Kemp owned a large farm of 629 acres in Pettis county, and that defendant, as her agent, controlled same, and received the rents therefor; that the rental value of same was about $900 per year, and that defendant received an average of this sum per year for a period of 20 years consecutively, beginning with the year 1887, and ending with the year by defendant; that for a period of 16 years 1907, making a total of $18,000 thus received prior to her death Sarah Kemp owned, in the town of Lamonte, a house, livery barn, and a lot of ground, of the rental value of $8 per

[Ed. Note. For other cases, see Estoppel, Cent. Dig. § 142; Dec. Dig. § 56.*] 3. DESCENT AND DISTRIBUTION (8 80*)-ACCOUNTING BY HEIR-RIGHT OF ACTION-EXISTENCE OF BUSINESS RELATION. Where defendant conducted his mother's business for many years under her immediate direction, and collected moneys for her, and expended or retained same under circumstances satisfactory to her, and where no accounting was required of him by her, an action could not be maintained against him by the administrator of his mother's estate for an accounting, especially where there was fraud, unfair dealing, undue influence,, or that no claim of

she was not at all times of sound mind.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 288-295; Dec. Dig. § 80.*]

Appeal from Circuit Court, Pettis County; month, or $96 per year, and that defendant Louis Hoffman, Judge.

Suit for an accounting by George W. Barnett, administrator of Sarah Kemp, deceased, against George W. Kemp. From judgment for defendant, plaintiff appeals. Affirmed.

George Barnett, Jr., of St. Louis, Sangree & Bohling, of Sedalia, and Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for appellant. Montgomery & Montgomery and Charles E. Yeater, all of Sedalia, for respondent.

WALKER, P. J. This is a suit in equity for an accounting brought in the circuit court of Pettis county by the administrator of the estate of Sarah Kemp, deceased, against George W. Kemp, her son. On a hearing a judgment was rendered in favor of the defendant, from which the plaintiff appeals.

Pleadings. Plaintiff in his petition, after the formal allegations as to his appointment, qualification, taking charge of the estate of Sarah Kemp, and that he is now acting as administrator of same, alleges that prior to the year 1887 one James Kemp died in Pettis county, leaving a large amount of proper

has received for her the rents on said property for said period in the total sum of $1,536; that the aggregate sum received by defendant for and on behalf of his mother, during the time he acted as her agent, was $25,203.42, as near as plaintiff can ascertain same; that said Sarah Kemp was old, and required but little for her support and maintenance, the necessary amount of which plaintiff has not been able to ascertain, a matter peculiarly within the knowledge of the defendant; that plaintiff has demanded of defendant a statement of his accounts showing the total amount of money received by him for his said mother and the amounts paid out on her account, and the items thereof, but that the defendant has failed and refused to render said account to plaintiff, or to pay anything on account thereof. Wherefore the plaintiff prays for an accounting between plaintiff and defendant, and for judgment, etc.

Defendant for his answer admits the death of James Kemp, prior to 1887; that he left a will, and a large amount of property; that at the time of the final settlement of the es

she began to live with him until her death; that he received and used her money as common property for common use, under her direction, and as she deemed proper, and that no cause of action exists in plaintiff to recover same or any part thereof.

Defendant admits the ownership of a farm by his mother, but avers that there was only about 320 acres of tillable land thereon, the greater part of the tract being timber, unfenced and not cultivated, and from which no income was derived. He denies that the rental value of said land was $900, or that he or his mother received an average of $900 a year therefor. He admits that she owned a dwelling house and livery barn in the town of Lamonte, and avers that he bought it under her direction with the sum of $1,600 she gave him; that through error the title was taken in his name, but he has disclaimed title thereto adverse to his mother; that he denies the rental value of said property was $1,536, or that he or his mother ever received any such sum therefor.

tate this defendant was the administrator, and son, and as one family, from the time and made such settlement, but denies that there was then found to be due Sarah Kemp the sum of $6,667.42, or any other sum, and denies that on said settlement said sum was paid over to him. He admits that his mother was old in 1887, she having been born in 1813, but denies that she was feeble or remained so until her death in 1908, but, on the contrary, that she was a woman of strength and activity, in full possession of her mental faculties until her last illness. That his mother lived with him, as a member of his family from 1892 until her death, but denies that she constituted him her agent to conduct and manage her business, or gave him sole control thereof. But he admits that she reposed entire confidence in him, and that their relations were confidential; but he denies that any agency, trusteeship, or other fiduciary relation other than that arising from their kinship as mother and son, and the affection and confidence they had for each other, existed between them; that he did manage and control her property and received the proceeds thereof, and paid the necessary expenses thereon, and that the true facts of the relations between defendant and his mother are as follows: That in 1882 said James Kemp, the husband of Sarah Kemp, died, and she was left alone on the farm, and the defendant, as her son, from a sense of duty and affection, undertook the management of her affairs; that she had only one other child, a Mrs. Hendrix, whose husband was then living, and that Mrs. Hendrix would not, or could not, live with her mother, and that the defendant felt in duty bound to assist his mother in running the farm and managing her property; that she remained on the farm until 1889 or 1890; that defendant then sold his own farm and moved into the town of Lamonte, and, finding it inconvenient to go to her home as often as he was required to do in his care for her, it was agreed that she would move into town and live with him; that, with money furnished him by his mother, he managed the farm, paid the taxes, made the repairs and other expenses, with the income derived therefrom, and that he did this purely as a gratuitous agent, under the direction and supervision of his mother; that, although she was old and occasionally ill, she retained her mental faculties unimpaired, and was at all times competent to manage and direct her business affairs; that whatever defendant did in the renting of the farm or in the use, investment, or expenditure of money belonging to his mother was done with her knowledge and under her direction; that no books of account were ever kept between them, and all matters were settled at the time they occurred; that all moneys handled, received, or expended were in accordance with his mother's assent and wishes, with no expectation or intention of holding the defendant liable to her or any

He denies that during the years alleged by plaintiff he received, as agent or otherwise, for his mother, cash and rents amounting to $25,203.42, and that whatever amount of money he received was in the manner and under the circumstances and agreements heretofore stated. He admits that his mother was old, but denies that she required little for her support; that he paid out for necessary expenses and repairs on her property the sum of $150 a year, during the period aforesaid, and paid taxes thereon during the same period, averaging $125 a year; that he built a barn and made other improvements under his mother's direction, in addition to the repairs mentioned, at a cost of $300; that the care, support, and maintenance of his mother during the period of time referred to by plaintiff was $600 a year, and that he paid for medical attention and medicine during said period a large amount which he is not able at this time to definitely state; that, if required to account for said rents and moneys alleged by plaintiff to have been received by defendant, he is entitled to have credits for all of said expenditures, and he prays the court to protect him in this behalf and for other proper relief.

Plaintiff for his reply denies specifically each of the allegations made in defendant's answer, and avers that defendant applied for letters of administration on his mother's estate, and that the probate court refused to appoint him, on the ground that he was indebted to said estate, but appointed the plaintiff instead, with a view of collecting from defendant the rents due the estate so collected by him; that plaintiff has called upon defendant for a statement of rents and other matters of his indebtedness to the estate of Sarah Kemp, and that defendant admitted he had been collecting rents for a