master and servant had not begun, and there is nothing in the evidence tending to prove a promise binding upon the plaintiff that it should begin, or upon which an action against him for failure to report for duty that night, or any future time would lie. It was only an offer of employment to be accepted by entry upon its duties, accompanied by permission to ride out on the drag to tell the storekeeper. Had it stopped before it got there, he would have had no action for the failure to carry him to the expected destination. These cars were not moving for the purpose of transporting persons from place to place, but solely to handle cars, and the permission to ride upon them involved only the right of the licensee to avail himself of such movement as was being made in the performance of that work. [3] It is true that the knowledge of the presence of persons upon the cars, whether with or without permission, involves the duty not to voluntarily or wantonly injure them; and in case they are there by permission the further duty arises that the permission be not used to entice them into danger not fairly incident to the work. [4] It does not impose on the carrier the duty to put its road in such condition that the licensee, riding upon the top of a box car, shall be surrounded with all those elements of comfort and safety with which the exercise of that highest degree of care which the law exacts in such cases surrounds the passenger in the caboose or Pullman. 3. The instruction given for the plaintiff authorizes the jury to find for him if a defect had existed in the defendant's tracks at the Frisco crossing so long that the defendant knew, or by the use of ordinary care and diligence could have known, it in time to have repaired it, and because of such defect the train broke in two, and the plaintiff, without negligence on his part, was thrown to the ground and injured. Waiving the failure of this instruction to confine the consideration of the jury to the defect in the track specially pleaded, it imposes upon the defendant the duty to maintain an absolutely perfect track. It makes any defect which might possibly have caused the accident and did cause it a ground of defendant's liability. This, as we have already seen, required the exercise of a degree of care for the plaintiff's safety to which he was not entitled. A defect may have existed, and still the track might have been, in the judgment of persons of ordinary skill and experience, amply sufficient for all the uses required of it, and the rule of ordinary care, which is the highest duty which rested upon defendant in this case, might not have indicated or required its immediate repair. The holding, as a matter of law, that the mere failure to repair a "defect" in the track was such negligence as rendered the defendant liable in this action, was prejudicial error. [5] 4. We also think that the court erred in refusing the defendant's peremptory instruction. The plaintiff was necessarily as familiar with the condition of the track at this crossing as any person in the defendant's employment. He was not only engaged in the service of keeping it in repair, but had ridden over it many times under similar circumstances, frequently over this same crossing, and for two years he had worked with a work train which "ran all over the terminal." Out of this experience, and after much reflection, he slowly developed the theory upon which this suit is now depending. About two weeks after the accident he made and verified by his voluntary affidavit a statement in which he said, in substance, that when he returned from East Bottoms he expected to get off at Hickory street, but before the car he was on got to Santa Fé street the train broke in two. He thought a drawhead had pulled out and they would be there some time, and, as he did not want to sit there, he got up, and as he was going to the end of the car to get off they coupled up awfully hard and knocked him off. He brought suit on the same cause of action soon afterwards (December 7th), which was dismissed in March following, and this suit was brought a week afterwards; the plaintiff still adhering, in his petition, to the theory that the car in which he was riding was standing still at the time he started to dismount, and that he was thrown off by a sudden and severe attempt, without notice to him, to couple it. This theory was abandoned only a month before the trial by an amended petition stating the opposite theory, that the car was slowly moving when plaintiff attempted to descend, and that he was knocked off by the sudden stop caused by the uncoupling. Each of these theories seems complicated by its own peculiar difficulties, so that the ultimate facts before us in this appeal have been developed by the most critical investigation. There is no danger of mistake or injustice in applying the law to them as they are presented. As we have already said, the plaintiff was not riding in the capacity of an employé upon the business of the company. Had he been so engaged, in the movement of these cars the familiar duty would have developed upon the defendant to use reasonable care to give him a reasonably safe place in which and reasonably safe appliances with which to do his work. This work would include climbing up and down about the cars as necessary in the faithful performance of his duty, and the measure of care required of defendant would be determined in view of all these conditions implied in the service. Had he been a passenger who, by the payment of money or some other valuable consideration had entitled himself to be carried from place to place in its trains used for that purpose, the defendant, while it would have owed him the very highest degree of care for his safety, The agent of a landowner, having negotiatfather of the grantee. The father without aued a sale, directed that the deed be sent to the thority delivered the deed, and it was placed on record; the grantee going into possession. Such grantee remained in possession for a considerable period of time after that fact was known to the landowner and his agent before any attempt was made to expel him or cancel the conveyance. Held that, the landowner having negligently placed the deed in such a situation that to deny the validity of a deed of trust given by the grantee might procure it, he was estopped the grantee while in possession and accepted by defendant in good faith. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 188; Dec. Dig. 72.1 5. ESTOPPEL 96 — EQUITABLE ESTOPPELGROUNDS OF. with the duty to stop to let him off at his | 4. ESTOPPEL 72-EQUITABLE ESTOPPEL. destination, would not ordinarily be responsible for the disastrous effect of an attempt to alight while it was in motion; and in case of the freight train he would assume the risk of those jars necessarily resulting from its handling. Evidently, for no other reason than to save the amount of his fare on a street car designed and operated to carry passengers, he chose the crudest and most dangerous of all the facilities afforded by railroads, the top of a box car, and is now claiming that out of this choice has arisen the duty to keep its roadway, although it may have been reasonably sufficient for all other legitimate uses, in such condition that he might walk to the edge of the roof in the darkness, stoop to find the top of the ladder, | and pass down it in safety while the car was in motion. The law does not sustain him in this contention. In accepting the defendant's invitation to ride on the top of this car, he accepted all the defendant's facilities for carrying him in that manner as he found them and knew them to be, with the privilege of getting off at any stop that might be made in the performance of the work to which his license was subject; and, if he chose to alight while the car was in motion, without notice to the defendant, he did so at his own peril. It was a careless act of his own, without which he would not have been injured. The judgment of the Jackson circuit court is reversed. RAILEY, C., not sitting. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur. LEONARD v. SHALE et al. (No. 17510.) (Supreme Court of Missouri, Division No. 1. Dec. 2, 1915.) In such case, the landowner and his agent having delayed for a considerable time in suing to cancel the conveyance and oust the grantee, they are estopped to deny the validity of the deed of trust given in the interim. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 288; Dec. Dig. 96.] Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge. Action by Theodore C. Leonard against Solomon C. Shale and others to ascertain and determine title. From a judgment for plainReversed, tiff, defendant Shale appeals. with directions. C. W. Meyer, of St. Joseph, for appellant. John S. Boyer and Vinton Pike, both of St. Joseph, for respondent. GRAVES, J. Action to ascertain and determine title. Judgment below was for the plaintiff, and defendant has appealed. The facts relied upon by plaintiff are concisely stated in the petition thus: "That the defendants claim to have some title, estate, or interest in said lands. That the plaintiff is informed, believes, and charges that the defendants' claim aforesaid is based upon a certain deed of trust made by Reid H. Huff to the defendant Charles W. Meyer, as trustee, to secure the payment of a note of said Huff to one William H. Wilson of the Philippine Islands in the amount of $1,500, payable three years after 1. MORTGAGES 154-BONA FIDES-NOTICE. One accepting a deed of trust executed by date, with interest at 5 per cent., which said the holder of the record title who was also indeed of trust bears date November 3, 1909, was possession is chargeable with no facts putting said date, and recorded on the same date in the acknowledged before competent authority on him on inquiry as to whether the conveyance to recorder's office of Buchanan county, in Book such holder was delivered. 391, at page 66 and 67. That the said Reid H. Huff, who made said deed, had no title, estate, or interest in said lands, but had fraudulently, wickedly, and surreptitiously obtained the semblance thereof by purloining from the custody of plaintiff's agent a deed which the plaintiff had made, signed, and acknowledged and intrusted to said agent for delivery to said Reid H. Huff, in the event that said Reid H. Huff should make That [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 344-353; Dec. Dig. 154.] 2. MORTGAGES 186-BONA FIDES-BURDEN OF PROOF. Where the deed of the holder of the record title was not delivered, the beneficiary of a trust deed executed by such holder has the burden of proving his bona fides. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 449-455; Dec. Dig. 186.] 3. PRINCIPAL AND AGENT AGENT. 177-NOTICE OF a contemplated purchase of said lands. said Huff did not purchase said lands or any part thereof or interest therein, and said deed has been, in a certain action brought by plaintiff against said Huff, declared to be null and void, by reason of its nondelivery to him, and the record thereof has been set aside and canceled. That said action and the decree therein was lately had and made in this court, in which action [Ed. Note.-For other cases, see Principal and this plaintiff was the plaintiff, and the said Agent, Cent. Dig. §§ 670-679; Dec. Dig. Reid H. Huff was defendant, and wherein the 177.] said Reid H. Huff was duly served with process Where the agent of a landowner knew that the depository he selected for delivery of a deed was the father of the grantee, the owner is charged with his knowledge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and appeared in said action. That the said note made by Reid H. Huff to said Wilson, and pretended to be secured by said deed of trust to the defendant Meyer, was not made and delivered upon any consideration whatever from said Wilson, but the name of said Wilson was used as a cover for a transaction between said Reid H. Huff and the defendant Shale, and that, while said note was made to said Wilson, it was intended for said Shale, and was by Wilson in form assigned and transferred to said Shale, who is now the owner and holder thereof." The answer admits that Shale is the owner and holder of the deed of trust and note mentioned in the answer, and avers that the same was duly and properly executed. The answer also sets up the plea that Shale was a purchaser for value of said note, and without notice of any alleged defects in the proceedings. In terse terms, that he (Shale) was an innocent purchaser, for value. There was also in the answer facts pleaded tending to show an estoppel. This was done. When is no question of Shale being out $1,500. The plaintiff learned in April, 1909, that this deed had been placed of record, and Dr. Leonard, his agent, knew that it had been placed of record, about the date of its record. Shale says he had no knowledge of any trouble about the title until Leonard sued Reid H. Huff to cancel the deed. This was early in 1910. His suit was successful, and shortly thereafter the present suit was brought. Details will be left to the opinion. This outlines the case. I. Upon this record it is quite clear that the possession and record of the deed from plaintiff to Reid H. Huff was wrongful. It appears to have been so held in a suit for its cancellation, in which judgment canceling it was entered. We start this case with that concession. A. B. Huff should have delivered plaintiff's deed to Dr. J. W. Leonard, and not to Reid H. Huff, as was evidently done. But this concession does not of itself justify the judgment nisi in the instant case. [1] II. The real questions in this case are (1) the good faith of Shale, and (2) the question of estoppel urged as against the plaintiff. We have read this record thoroughly, and there is no substantial evidence against the good faith of Shale. Nor is there substantial evidence tending to show that he had any knowledge of what happened between the Leonards and the Huffs. The fact that he had heard discussed at times that the Huffs had gotten a farm at a bargain is not such as would impugn his good faith in making this loan. Nor is there anything in this record that would cast upon Shale the duty to H. Huff. The Huffs were in possession, and make inquiry. The record title was in Reid nothing on the surface to call for an inquiry by Shale. We therefore dismiss this branch of the case by saying that there is nothing in the record which would impugn the good faith of Shale in the transaction, and that in good faith he parted with $1,500 on the apparent title of Reid H. Huff to this land. The pertinent facts are such as can be stated shortly. Plaintiff was not a resident of Missouri, but had a brother who lived in St. Joseph. Plaintiff resided at Cincinnati, Ohio. He owned this land in Buchanan county, which was under the immediate control of his brother, Dr. Leonard. In January, 1909, Dr. Leonard was sick at the residence of A. B. Huff in South St. Joseph. A. B. Huff was the father of Reid Huff, who figures conspicuously in this case. During the time Dr. Leonard was at the residence of A. B. Huff, some kind of a trade for this land and other lands belonging to Leonard's sisters was made. Dr. Leonard wrote the plaintiff to make out a deed to the 40 acres of land in question and inclose it in an envelope addressed on the outside to him (Dr. J. W. Leonard), and to inclose this in another envelope and address it to A. B. Huff, South St. Joseph, Mo., and mail it to A. B. Huff in that way. Huff received the letter thus addressed, he evidently opened the letter to Dr. Leonard and took out the deed, and it was immediately placed of record without the knowledge or consent of either Dr. Leonard or the plain[2-4] III. Conceding then that the possestiff. This deed conveyed the land to Reid sion of the deed from Leonard to Huff was H. Huff, and the Huffs took possession of wrongful, and that the recording thereof octhe land. The deed was acknowledged incurred by reason of the wrongful possession, Ohio January 27, 1909, and recorded in St. how stands the case? Joseph January 29, 1909, or just two days later. In October, 1909, Reid H. Huff began to negotiate a loan on this land. The first arrangement was to get a loan of $1,500 from Wm. H. Wilson, then in the Philippine Islands, through his brother Sidney C. Wilson, an attorney at St. Joseph and an agent of Wm. H. Wilson. This was to be a 5 per cent. loan. Papers were accordingly drawn up, but Sidney C. Wilson found that he could get a better rate of interest for his brother, and the defendant Shale was induced to take the loan on this land. Accordingly, the note was assigned to Shale, and he put up the $1,500 which was received by Reid H. Huff, less the expenses of making the loan. There 181 S.W.-2 It is undisputed that the Huffs went into possession and remained in possession for a year. They were in possession when the deed of trust was made. It is undisputed that the plaintiff's agent in charge of this land knew this fact. It is undisputed that plaintiff's agent, in charge of this land for him, knew of the record of this deed, at or about the time it was placed of record, and plaintiff admits that he knew of it six months before the defendant Shale bought the $1,500 note and deed of trust. With these patent and undisputed facts, should the plaintiff be protected by a decree such as was entered nisi? We think not. Respondent's very able counsel in the brief say: "The deed never having been delivered, no title passed, and Shale acquired no right under the deed of trust unless respondent has estopped bimself. Shale's position is that he is an innocent purchaser in good faith. The onus is on him." We think counsel have well expressed the law of the case. Defendant's evidence clearly shows good faith, and its force and effect is not impaired to any serious extent by a close and vigorous cross-examination, upon which the plaintiff relies. That Shale was in good faith when he took this note and deed of trust, we have no doubt under the record before us. That there were no circumstances which called for a special inquiry as to title by Shale is equally clear. No facts appear which would lead a reasonably prudent man to suspect that the record title was not the true title, and therefore there was no legal demand upon Shale to look further, or inquire further as to the title. The onus of showing good faith has been borne by the defendant Shale. The above leaves only the question of estoppel. This can be approached from two angles, (1) the conduct of the plaintiff in placing a fully executed deed in the hands of the father of Reid H. Huff, and (2) the conduct of the plaintiff after he knew that such deed had in fact been delivered and placed of record. For this case we may assume, as contended by plaintiff, that a deed stolen from a grantor, before delivery, passes no title to the grantee therein named, nor to one acquiring a deed from him; but there are exceptions to such a rule. the Wisconsin court speaks in Tisher v. Beckwith et al., 30 Wis. loc. cit. 58, 11 Am. Rep. 546: Thus of father and son and member of the same household) when he directed the deed to be mailed to said Huff. This knowledge should be attributed to plaintiff, because his agent was the party in charge of the land (and its sale) which was the subject of the trade and deed. Then, in addition to that, the plaintiff made the elder Huff his depository, and, if he violated his confidence, innocent third parties should not suffer. Upon the ground of negligence, as well as the latter ground, the plaintiff should be estopped to assert his title as against Shale. [5] IV. Not only should the plaintiff be estopped by reason of his own negligence in placing an acknowledged deed in a place where its delivery might be obtained wrongfully, and by reason of the further fact that A. B. Huff was the depository of his own selection, and thereby his agent, but his conduct after the delivery and record of the deed should bar his action by way of estoppel. In 27 Cyc. p. 1036, the rule is thus stated: "If the real owner of property allows it to stand recorded in the name of another, by a title such as to pass the fee, he puts it in the power of that other to create a valid mortgage "pon it. And the lien of a mortgage will prevail against the right of any third person to impeach and divest the mortgagor's title as having been obtained by fraud or false representarecord title of his mortgagor and had no notice tions, where the mortgagee relied on the clear actual or constructive of the rights of the stranger." Plaintiff knew that his deed was of rec ord long before this deed of trust was taken by defendant Shale. He knew that the Huffs had gone into possession. The deed conveyed the fee to Reid H. Huff. Plaintiff should have taken prompt action toward divesting Huff of his apparent title. Such action would have saved the defendant Shale. One cannot knowingly permit the title to his lands to stand in the name of another, and then defeat liens placed thereon by such per "The only question which can ever arise to defeat the title of the supposed grantor in such cases is whether he was guilty of any negligence in having made, signed, and acknowledged the instrument, and in suffering it to be kept or deposited in some place where he knew the party named as grantee might, if so disposed, readily and without trouble obtain such wrongful possession of it and so be enabled to deceive and defraud innocent third persons. It might possibly be that a case of that kind could be present-son, if the party who takes the lien acts in ed where the negligence of the supposed grantor in this respect was so great, and his inattention and carelessness to the rights of others so mark ed, that the law would on that account estop him from setting up his title as against a bona fide purchaser for value under such deed. See Everts v. Agnes et al., 6 Wis. 453. The same case also makes a distinction between a note or other instrument so obtained and one deposited in escrow and afterwards fraudulently delivered by the depositors, holding that in the latter case the maker would be bound as against an innocent holder for value, on the ground of the trust or confidence reposed by him in the depository, and upon the principle that, when one or two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. Upon the same question, also, of negligence, see Wait v. Pomeroy, 20 Mich. 425, 4 Am. Rep. 395." Both these doctrines apply to this case. The agent of plaintiff knew the relationship between A. B. Huff and Reid H. Huff (that good faith and without knowledge of the true WILSON v. UNITED RYS. CO. OF ST. LOUIS. (No. 17591.) held for the jury, though plaintiff testified that, if he had stopped to think, he would have realized the danger. [Ed. Note.-For other cases, see Master and (Supreme Court of Missouri, Division No. 1. Servant, Cent. Dig. 88 1089, 1090, 1092-1132; Dec. 2, 1915. Rehearing Denied Dec. Dig. 289.] Dec. 21, 1915.) 1. NEGLIGENCE 12-EMERGENCIES-FORCE OF CIRCUMSTANCES. Where, by force of circumstances, a person has been forced to hurriedly choose a course of action, by reason of the previous negligence of another party, the party thus hurried is not held to the strictest diligence. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 14; Dec. Dig. 12.] 2. MASTER AND SERVANT 245-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE-PERFORMANCE OF Act at MASTER'S DIRECTION. Where a servant is specifically directed by the master to do an act, he can rely on the master's judgment that it is safe, provided that he does not know that the act is accompanied with such imminent and impending danger as would preclude a reasonably prudent person from undertaking it. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 682, 778-878; Dec. Dig. ~~~245.] 3. MASTER AND SERVANT SERVANT 289-INJURIES TO CONTRIBUTORY NEGLIGENCE QUESTION For Jury. Whether the danger in doing an act specifically directed by the master was so imminent and impending as to preclude a reasonably prudent person from undertaking it, so that the servant was guilty of contributory negligence in so doing, is usually a question for the jury under the circumstances, unless there is no room for difference between ordinary minds, in which case the question is of law for the court. STRUCTION. 6. EVIDENCE 265-ADMISSION-EFFECT. In a servant's action for injuries, the question is whether or not, under all the facts, a man of ordinary prudence would have done as plaintiff did; and his admission that he would not have done so, had he stopped to think, was not conclusive on him. [[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. 265.] 7. EVIDENCE 265-INJURIES TO SERVANT ACTION-ADMISSION-EFFECT. In a servant's action for injuries. his adhave known that the danger was imminent or mission that, had he stopped to think, he would apparent, was evidence on the issue of contributory negligence. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1029-1050; Dec. Dig. 265.] Appeal from St. Louis Circuit Court; Hugo Muench, Judge. Action by John C. Wilson against the United Railways Company of St. Louis. Judgment for plaintiff for $3,000 was affirmed by the St. Louis Court of Appeals (169 Mo. App. 410, 152 S. W. 426), and case certified to Supreme Court. Reversed, and cause remanded. Boyle & Priest and T. E. Francis, all of St. Louis, for appellant. A. R. & Howard Taylor, of St. Louis, for respondent. This was a second appeal to that court in this case. The first time it was reversed for certain errors in instructions. 142 Mo. App. 676, 121 S. W. 1083. Upon this second appeal by a majority opinion this judgment was affirmed; but one of the judges dissented, on the ground that the majority opinion was in conflict with a case decided by this court, and asked that this case be certified to this court. 169 Mo. App. 410, 152 S. W. 426. Hence its presence here. [Ed. Note.-For other cases, see Master and GRAVES, J. Action for damages for perServant, Cent. Dig. §§ 1089, 1090, 1092-1132; sonal injuries alleged to have resulted from Dec. Dig. 289.] the negligence of the defendant. From a 4. TRIAL 253-INJURIES TO SERVANT-IN- judgment against it for $3,000 the defendant In an action by a servant for injuries re-appealed to the St. Louis Court of Appeals. ceived on a load of ties on a flat car, where the court charged that if the jury found from the evidence that plaintiff, in the exercise of ordinary care, would have known that the ties were insecure, and that there was some danger of their falling and injuring him, yet, if the danger of falling was not so apparent that a person of ordinary prudence under the same circumstances would not have done the work that plaintiff was doing, then the fact that plaintiff did work on the ties under said circumstances would not of itself prevent a recovery, "unless the jury believe that the act done by plaintiff was such contributory negligence under the facts as should preclude him from recovering," such instruction was erroneous in the quoted clause, as precluding the theory that, if the court could not say that the servant's contributory negligence was so patent as to bar his recovery, it was then for the jury to say whether the facts constituted such contributory negligence as would bar his recovery, since the quoted clause was a statement that the danger was not so imminent and impending as would absolutely bar a recovery, and was further misleading in not leaving it to the jury whether or not the plaintiff was guilty of contributory negligence. By this petition it appears that plaintiff was engaged as a laborer by the defendant in the work of loading, hauling, and unloading ties. Plaintiff helped to load the ties upon a flat car, and then looked after the trolley whilst the car was in transit from the place of loading to the place where the ties were to be unloaded and used. Plaintiff was working in a crew of which there was a foreman and an assistant foreman. After the car of ties had been practically, although not fully, loaded, by the direction of the fore5. MASTER AND SERVANT 289-INJURIES TO man it was started to the place of distribuSERVANT CONTRIBUTORY NEGLIGENCE tion. Plaintiff had assisted in the loading QUESTION FOR JURY. In a servant's action for injuries through of the ties, and knew just how they were the falling of ties piled on a flat car, question He knew that they had not been of his contributory negligence in riding thereon braced or blocked on the car. He climbed [Ed. Note.-For other cases, see Trial, Cent. Dig. $ 613-623; Dec. Dig. 253.] loaded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |