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(232 S.W.)

Co., 148 Mo. 1, loc. cit. 11 [49 S. W. 9781. in that said Brown was not shown to have received such authority from the relator as would constitute him the agent of relator with power to bind the relator by his acts and knowledge as if under the circumstances the relator had acted for itself."

answer so far as plaintiffs were concerned, [ communicated by Brown to any superior agent for the obvious reason that defendant never or officer of the relator, is in conflict with the paid the amount of their demand. If it in- previous controlling decision of this court in sisted on being subrogated to plaintiffs' the case of James v. Mutual Life Insurance rights, it should have paid the latter's de mand, or paid the same into court, and asked mand, or paid the same into court, and asked for an order subrogating it to plaintiffs' rights, etc. Even without an order of court, or the formal assignment of securities held by plaintiffs, the payment of plaintiffs' demand, would have entitled relator to equitable subrogation. 25 Ruling Case Law, § 8, p. 1320. The above subrogation, however, had nothing whatever to do with plaintiffs' right to recover on the policy as mortgagees. [4] (b) The trial court erred in requiring Martin and Krupnick to appear and plead in plaintiffs' case, as they were not only unnecessary parties therein, but had no interest in the controversy pending between relator and plaintiffs. Fulton v. Fisher, 239 Mo. loc. cit. 131, 132, 143 S. W. 438.

The James Case, supra, came to this court on appeal from the circuit court, and all the evidence was before us. of the James Case (49 S. W. 980) it was said: Upon page 13

"The question of waiver is, like any other fact in the case, essentially a matter for the jury." (Italics ours.)

On

The entire evidence was presumably before the Court of Appeals, but only such portions of same can be considered here as appear from the opinion of the Court of Appeals. State ex rel. Bush v. Sturgis et al., 281 Mo. 598, 221 S. W. 91, 9 A. L. R. 1315. the partial facts before us we find no grounds for quashing the record and judgment of the Court of Appeals on account of alleged conflict between its opinion, and that of this court in the James Case, supra. The above contention is accordingly overruled.

4. Relator's third assignment of error reads as follows:

[5] 2. Although the trial court improperly required Martin and Krupnick to be joined as parties to plaintiffs' action, yet they appeared and pleaded therein. Martin disclaimed any beneficial interest, and answered that the premises were conveyed to him for the purpose of having said property conveyed to Krupnick. The latter pleaded to said action after having been brought in at the instance of relator, and alleged, in substance, that he was the owner of the real estate in contro"The decision of the Court of Appeals disversy, subject to said deeds of trust; that closes facts conclusively proving that relator said insurance company had full knowledge, at the date of the fire is not liable under said at the time it wrote the policy, of all the policy to Martin, the mortgagor, and in refusfacts stated in said pleadings; that it had ing, as in equity, to consider and enforce subfull knowledge, before and after said policy rogation as provided in the mortgage clause, was written, of all the facts aforesaid, and, as an incident to a finding of the court that with this knowledge, kept and retained the relator is liable to pay the mortgagee under amount of premium paid for said insurance; with the previous controlling decisions of this the mortgage clause, the decision is in conflict that, by reason of the foregoing, said insur-court that a person secondarily liable, who ance was not void, etc. The relator pleaded pays the debt of another, is, as against the debtto said answer, and denied that it had any knowledge of the above facts pleaded by Krupnick.

or primarily liable, entitled to be subrogated to all the rights of the creditor under the securities held by him. Loewenstein v. Queen Insurance Co., 227 Mo. 100, loc. cit. 117 [127 S. W. 72].

It will thus be seen that the issues between Krupnick and relator were purely legal in their nature, and properly triable before a The main points relating to this assignjury. The equitable matter set out in the ment of error have been fully considered cross-bill did not purport to destroy Krup-under propositions one and two of this opinnick's right of action, but was pleaded as ion. We hold that there is no conflict besubrogation, without paying plaintiffs' de- tween the conclusions reached by the Court mand as heretofore shown. The authorities cited in the preceding proposition apply with equal force to the above facts. The case was therefore properly tried throughout as an action at law, and the Court of Appeals was right in so holding.

[6] 3. Relator's second assignment of error reads as follows:

"The decision of the Court of Appeals that the relator is charged with whatever knowledge was acquired a few weeks after the issuance of policy, by its inspector Brown, though such knowledge, if any, was not shown to have been 232 S.W.-44

of Appeals in this case, and the principles of law declared in the Loewenstein Case above mentioned.

[7] 5. It is undisputed in this case, that no part of the loss sustained by plaintiffs has ever been paid. The relator was not entitled. to be subrogated to the rights and remedies of plaintiffs until it had paid their demand. The alleged equitable defense injected into the cause did not convert the case into a proceeding in equity. On the contrary, it was properly disposed of as a proceeding at law. Under the circumstances, there was no place

for equitable subrogation in the case. The
opinion of the Court of Appeals is in harmony
with the former rulings of this court.
The writ heretofore issued is accordingly
quashed.

WHITE and MOZLEY, CC., concur.

PER CURIAM. The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the curt.

All concur.

SPINDLER v. AMERICAN EXPRESS CO.
(No. 22059.)

(Supreme Court of Missouri, Division No. 1.
June 6, 1921. Rehearing Denied
July 11, 1921.)

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1. Master and servant 106(1) Express company responsible for condition of railway station elevator.

A freight elevator in a railway station used by an express company and its employees was an appliance and place of work furnished an employee by the company, and it was obligated to use reasonable care to make the elevator reasonably safe for the employee in doing his work.

2. Master and servant 101, 102(2) not insurer of safety.

Master

A master is not an insurer of his servant's safety, and is only required to exercise able care to furnish reasonably safe appliances

and reasonably safe places to work.

3. Negligence 136 (8)-Negligence for court on undisputed facts.

The facts being undisputed, it is a question of law for the court to determine whether such facts tend to prove that the master has failed to discharge his legal duty to exercise reasonable care to furnish reasonably safe appliances and places of work.

4. Negligence 4-"Reasonable care" defined. "Reasonable care" is such care as ordinarily prudent persons ordinarily exercise under the same or similar circumstances.

descending guard or fence which descended automatically as the elevator was raised, was not negligent in furnishing such elevator for the employee's use where there were 31 elevators in the station all used in the same way by such company and other express companies, a terminal railway company, and the United States government, and no other method of moving express matter, baggage, and mail was shown to exist.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Anna Spindler against the American Express Company. From a judgment for plaintiff, defendant appeals. Reversed.

Watts, Gentry & Lee, of St. Louis, for appellant.

Rollins, Schneider & Halter and Joseph Reilly, all of St. Louis, for respondent.

SMALL, C. I. Suit for death of husband while operating a freight elevator at the Union Station in St. Louis carrying a truck loaded with express packages from the subway to the ground floor of said station.

There was no dispute in the evidence. The defendant offered no testimony.

It appears from the plaintiff's evidence that her husband was a laborer, and for some weeks prior to his death, which occurred May 13, 1918, he was employed by defendant, at its place of business at the Union Station in St. Louis, to load express packages on a fourreason-wheeled truck, and with the assistance of another employee to push or pull the loaded truck in the subway until it reached a freight elevator running from the subway to the ground floor of the Union Station. When they reached said elevator, it was the duty of the plaintiff's husband to operate the elevator. In order to start the elevator moving upward, he was required to pull down on a wire cable and to stop it when it got level with the ground floor. He was required to stoop down and take hold of a ring attached to a chain, which ran through the platform, and pull up on the chain. In order to protect persons on the ground floor from falling into the elevator shaft, there was an iron guard or fence around said shaft on said ground floor. It was attached to the machinery of the elevator in such manner as to move downward as the elevator ascended, and upward as the elevator descended, and in close ward as the elevator descended, and in close proximity thereto. The elevator shaft on the south and east sides was inclosed with a solid concrete wall reaching from the subway to the ground floor, a distance of about 30 feet. The north side of the shaft was open. The west side was also open. The elevator platform was 19 feet long and 4 feet 6 inches wide. The ring in the platform, which the operator was required to grasp and pull upon in order to stop the elevator when it reached

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reasonable Care.]

5. Master and servant

105(1)-Master may furnish appliances ordinarily furnished. If a master furnishes the same kind of appliances and places of work ordinarily furnished by others in the same business, it cannot be said that he has failed to exercise ordinary care in so doing.

6. Master and servant 105(1) Express company not negligent in furnishing freight elevator like others in railway station.

An express company, carrying on its business in a railway station and making use of a freight elevator controlled by a chain and ring in reaching which an employee was struck by a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

The evidence further showed that there were 31 of these same kind of elevators at the Union Station in St. Louis, all of them of the same make, size, and style. All of them operated, started, and stopped in the same way, and all of them used by three different express companies, also by the railroad companies in loading the baggage they carried, and also by the United States in loading mail. The elevators were inspected and kept in repair by the Terminal Railway Association, which owned and operated the Union Station.

On behalf of the plaintiff the court gave several instructions.

The defendant offered a demurrer to the evidence, which the court refused.

There was a verdict of $8,000 in favor of the plaintiff.

Defendant appealed to this court, after unsuccessfully moving for a new trial.

the level of the ground floor, was about mid- [tor on the platform could stand up straight way between the front and rear ends of the with the ring or chain in his hand, and, by platform and about 9 inches from the west, making an additional pull, stop the elevator, or right-hand, edge of said platform. The after the descending guard had passed, and body of the truck was about 10 feet long and thus avoid danger therefrom. 3 feet wide. On the occasion of the death of the plaintiff's husband the truck was heavily loaded, and the witness Davis was working with him. Davis was at the rear of the truck, which was pushed onto the elevator platform from the north side, Davis pulling and walking backwards and facing the north. The plaintiff's husband was in front, and had hold of the handles of the truck, and was facing and pushing south. After they got on the platform, Davis could not see Spindler, on account of the load on the truck. There was no guard nor anything on the platform itself to prevent a man's body from extending over the edge of the platform and getting caught by the gate or guard when it came down. On this occasion, as the elevator ascended, Davis could not see what happened, but he heard Mr. Spindler "holler," and the elevator gradually stopped. Davis did not do anything, but some one lowered the elevator from the subway floor. Then Davis saw Spindler lying on the platform. Spindler had hold of the ring with his left hand, and his body was crushed between the guard and the platform, and he died in a few minutes thereafter. It was necessary for him, in order to stop the elevator, when it reached the ground floor, to catch hold of said ring. As far as witness knew, Spindler was attending to his work in the usual manner. Spindler had remained at the north end of the truck. The ring in the platform was to the right of the truck. It was not necessary, if the operator acted quick enough, to reach down and catch hold of the ring until the descending guard had passed the edge of the platform, but, if the operator should not start to stop the elevator in time, the platform would sometimes ascend a foot or so above the surface of the ground floor, and there would be some time lost and difficulty in lowering it. The operator was supposed to so manage the stopping of it as to stop it as nearly as possible on a level with said ground floor, so as to prevent delay in the work. The plaintiff's husband weighed about 135 pounds. In case packages should fall off, it was his duty to stop the elevator and pick them up. To get hold of the ring in the platform, there was only a space about 9 inches or a foot wide between the descending gates or guards and the truck. It was the duty of plaintiff's husband to determine the position of the truck on the platform, but, on account of the little difference between the width of the truck and the width of the platform, the truck had to be placed "as close to the center as you could." The ring and the chain in the platform could be pulled up several feet without stopping the elevator, and the opera

[1-3] II. We have carefully considered the able brief, and all the points and authorities made and referred to by respondent's learned counsel. We agree, as contended for by them, that said elevator was an appliance and place of work furnished the plaintiff's husband by defendant, and that defendant, therefore, was obligated to use reasonable care to make such elevator reasonably safe for the plaintiff's husband in doing his work. Yet the question remains, whether there was any evidence tending to show that the defendant failed to perform the duty it owed plaintiff's husband in that regard; i. e., was guilty of actionable negligence. It is well settled that the master is not an insurer of his servant's safety, and is only required to exercise reasonable care to furnish reasonably safe appliances and reasonably safe places to work. The facts being undisputed, it is a question of law for the court to determine whether such facts tend to prove that the master has failed to discharge the legal duty imposed upon him.

[4, 5] Reasonable care is such care as ordinarily prudent persons ordinarily exercise under the same or similar circumstances. If the master furnishes the same kind of appliances and places of work ordinarily furnished by others in the same business, it cannot be said that he has failed to exercise ordinary care in so doing.

[6] It must be borne in mind that there was no defect in said elevator arising from failure to keep it in repair, but the claim of plaintiff is that it was negligently constructed and maintained, because there was no guard on the platform to protect the operator, when he reached down to grasp said ring, from being injured by the descending

"In 26 Cyc. p. 1097, the rule is thus stated: 'It is the positive duty of a master to furnish his servant with reasonably safe instrumentalities wherewith, and places wherein, to do his work, and in the performance of these obligations imposed by law it is essential that regard should be had, not only to the character of the work to be performed, but also the ordinary hazards of the employment; and the servant may assume that the master has performed such duty. This rule does not apply where the servant makes an improper or unusual use of the appliances furnished him, or where the place becomes unsafe during the progress of the work.'

"In 3 Labatt's Master and Servant, p. 2500, it is said: 'From the above-stated conception of the extent of the master's obligations is constantly reiterated and applied, that he candrawn the very important practical deduction, not be charged with a breach of the duties owed to his servants, simply on the ground that a safer method or a safer instrumentality than that from which the injury resulted was available and might have been adopted by him.'

guard; that the space between the truck and I ployed to describe the degree of diligence to the descending guard was so narrow that in which the employer is bound in providing his reaching for such ring the plaintiff's hus- employee with safe tools, appliances, machinery, band, or any other employee operating the and working places.' elevator, was likely to protrude some part of his body over the edge of the platform and under the descending guard, and be injured thereby; that this was an open, obvious, and unnecessary danger, and it was negligence in the defendant to subject its employees thereto in doing their work. But the evidence shows that there were 31 elevators at the said Union Station, all used as plaintiff's husband was using the elevator which injured him; that for years they had been in such use, not only by defendant, but by other express companies, by the Terminal Railway Company itself, in handling the baggage of the numerous railroads entering said Union Station, and by the United States in moving mail. In fact, no other method of moving express matter, baggage, and mail from the subway to the cars on said ground floor was shown to exist, except by means of said elevators, all of the same size and constructed, equipped, and operated in precisely the same manner as the one which injured the plaintiff's husband. Such being the undisputed ed ordinary and usual care in the selection of facts shown by the plaintiff's testimony, un-ments are reasonably safe for the use. He is the instrumentalities, and that such instruder the law firmly established by this court, under no obligation to have the best or latest we must hold there is no evidence tending to appliances. prove negligence on the part of the defendant. This subject was recently elaborately considered by this court in Williams v. St. Joseph Artesian Ice & Cold Storage Co., 214 S. W. 385. In that case plaintiff was injured by an oil cup attached to certain machinery without being upon a certain extension, which would have prevented the injury to plaintiff. Some of the oil cups in defendant's establishment were equipped with such extension, and some were not. This court, per Graves, J., said (pages 389, 390):

"The question is: Does this evidence show a negligently constructed machine? Or, perhaps better stated, does this evidence show that defendant was negligent in maintaining a pump constructed as this pump was constructed? It should be kept in mind that the charge of negligence is not that of a defect in the machinery, but that the furnishing to plaintiff a pump constructed as this pump was constructed was negligence. The pump was in its normal condition, even if it be said that the oil cup was situated as plaintiff claims. Where the master furnishes an instrumentality in its natural or normal condition, then the question is: Was this furnishing of such an instrumentality, negligence? It may or may not be according to the facts, when such facts are measured by the proper rules of law.

"To start with, it is the duty of the master to exercise ordinary or reasonable care in providing appliances and machinery to be used by the servant. The rule is thus concisely stated in 18 R. C. L. loc. cit. 546: "Ordinary care" or "reasonable care" are the terms usually em

"The test is whether the master has exercis

"This court has fully recognized this rule. In Coin v. Lounge Co., 222 Mo. loc. cit. 509, 121 S. W. 7, 25 L. R. A. (N. S.) 1179, 17 Ann. Cas. 888, it is said: 'As already said, an employer is under no obligation to his employee to furnish the newest and best machinery or implements for his work. The legal test of reasonable safety in machinery or methods is customary use by those engaged in like employment and work, and the jury cannot be permitted to set up any other. An employer is under an obligation to use reasonable care to furnish his employee with reasonably safe machinery and appliances, but it is not in every case for the jury to determine the standard of safety.'

"Plaintiff charges negligence in his petition, in the failure of defendant to furnish a reasonably safe appliance. This is not the language of the petition, but is its legal effect. It devolved upon plaintiff to prove this negligence, and not leave the jury to wander in darkness. The measure of this proof is well stated in 18 R. C. L. p. 547, thus: "The unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by the law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man.'

"In Titus v. Railroad Co., 136 Pa. loc. cit. 626, 20 Atl. 518, 20 Am. St. Rep. 944, it is said: 'All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the lat ter; for, in regard to the style of implement or

(232 S.W.)

nature of the mode of performance of any work, "reasonably safe," means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.' "The foregoing accords with what was said in Coin's Case, supra, when we used this language: "The legal test of reasonable safety in machinery or methods is customary use by those engaged in like employment and work, and the jury cannot be permitted to set up any

other.'

"We think that our Brother Gantt, in Coin's Case, has well expressed the rule as recognized in this state. Plaintiff having the burden of establishing the alleged negligence, does his evidence show it under this rule? There is evidence tending to show that at one time the pumps used by defendant did not have extensions for the oil cups. There is evidence also that at the time of the accident at least some of the oil cups had extensions, but this does not prove that the use of such pumps without extensions was not in accordance with 'customary use by those engaged in like employment and work.' And in Coin's Case we say, 'And the jury cannot be permitted to set up any other' test. ** **The burden being upon plaintiff to show the negligence charged, we do

not believe he has carried that burden under our rule as to the required proof in a case like this."

In the above case Bond, J., concurred with Graves, J., Woodson, J., not sitting. Blair, P. J., concurred in paragraph IV of said opinion, holding plaintiff in that case was guilty of contributory negligence, and in the result. We think the above extract from said opinion announces the true rule in such cases.

The result is we are compelled to hold. that defendant's demurrer to the evidence should have been given.

The judgment below must be reversed.
It is so ordered.

BROWN and RAGLAND, CC., concur.

PER CURIAM. The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All the Judges concur; JAMES T. BLAIR, J., in the result.

(289 Mo. 209)

ELAM v. PHARISS et al. (No. 21813.) (Supreme Court of Missouri, Division No. 1. June 6, 1921. Rehearing Denied July 11, 1921.)

1. Wills 302 (1)-Evidence held entirely insufficient to show that instrument was not will executed by testatrix.

In a will contest case, evidence held entirely insufficient to show that the first pages of a document consisting of a number of pages were not part of the instrument executed by the testatrix.

2. Wills 821(1)-It cannot be assumed that land was subject to curtesy so that charge placed thereon by testatrix was invalid.

It will not be presumed that title of testa

trix was so taken that curtesy was not excluded, as property may be so conveyed that the husband's curtesy is excluded, yet the wife's estate can be disposed of by her will, so a will under which a wife devised lands to her husband for life placing a charge thereon for one beneficiary cannot be held invalid on the theory that the charge could not be imposed as the husband was entitled to curtesy and that the testatrix intended a gift to the beneficiary, for there was nothing to show that the land was subject to curtesy, and the exception in Rev. St. 1919, § 505, being inapplicable. 3. Wills 152-Will not open to attack on theory of mistake.

Where testatrix devised lands to her husband for life directing that he should pay $150 per year towards procuring a home for a daughter, the fact that the will was executed by the testatrix under mistaken advice of counsel that such charge could be placed on the gift to the husband will not render the will invalid on the theory that testatrix intended the beneficiary to take a gift, for the will was in accordance with the testatrix's wishes and desires.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Nettie L. Elam against Edith Phariss and others to contest the probate of a will. From a judgment for defendants, plaintiff appeals. Affirmed.

Oscar B. Elam, of Springfield, for appel

lant.

H. H. Bloss, of Aurora, for respondents.

JAMES T. BLAIR, J. This is a will contest. There was a verdict upholding the will, and judgment was rendered accordingly. Appellant and respondents Nathaniel Merle Wheat and Edith Phariss are the children and heirs at law of testatrix. Respondent N. M. Wheat is her surviving husband, and he and respondent Elliott are the executors under the will.

By the will testatrix devised (1) to her son three lots and parts of two other lots in Aurora and a one-half interest in a tract near the city, all subject to a life estate

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