*1 of know- because plaintiff, therefore, hold that We, secs. 415-439.] convey- fraudulent intentionally these participating ingly and and title cancellation relief of ances, denied properly adjudication. to the the sam’e of Kurths is as However, the situation knowingly inten They also relief them. affirmative asked conveyances. рolicy of The
tionally fraudulent participated relief to circumstances, affirmative is refuse equity, under such 267; J. Jur. 27 C. Am. participants. of either the fraudulent [24 evi Furthermore, we do not know 659, secs. 431-433.] Leeper may true state of affairs what have been the dence might im partners. This partnership Brothers’ as between the no There is determining equities of situation. portant partnership. or full administration evidence to show settlement testimony) testimony (and indicates Leeper’s William F. other Mrs. al party real in interest against it, that she had and is claims therefore, hold defendants though We, made not defendant. any adjudication. title should be denied adjudication Three judgment affirmed as of Count The is to all counts the damages crops; as other conversion judg- with enter judgment and remanded directions to reversed dismissing dismissing ment and also defendants’ plaintiff’s petition Bradley Dalton, CC., bill and action. concur. cross counter C., foregoing opinion adopted PER CURIAM:—The Hyde, opinion judges All as court. concur. F. C. thе estate of Ernest Administratrix of Miller, Miller, Julia Corporation, v. Terminal Louis, Railroad Association St. Appellant. (2d) 1034. W. One, July 1, Division 1942. Rehearing July 28, Denied, 1942. *2 Sheppard Arnot Hadley, Walter N. Davis and L.
Carlton appellant.
Mark Eagleton, D. James A. WaecMer and Roberts P. Elam for- respondent.
BRADLEY, under the Federal Employ- C. This cause is Liability Act, A., ers’ seq. 45 U. S. C. sec. 51 The verdict was for et $55,000 $25,000 A plaintiff. made; favor remittitur the was motion for a new overruled, appealed. trial was and defendant employ
Ernest F. Miller inwas the of defendant and as switchman duty on July 12, while was struck and killed in defendant’s yards in Louis; East St. Plaintiff, widow, brought Illinois. his suit estate, this as administratrix damages of his to recover for the alleged wrongful death. plaintiff If a against defendant, has cause of action it is conceded that the properly cause is Employers’ Liability under Federal the Act. Plaintiff relied on ipsa loquitur the res rule and the submitted theory. cause on such
The train on which freight deceased was killed awas train and moved Louis, from Missouri, St. to Louis, East St. Illinois, across Bridge, by Eads owned defendant. There are two tracks the across bridgе, and, contrary general to practice, the gen- eastbound trains erally use track, the north generally westbound trains the use track, south but to traffic, accommodate may such use be reversed. And when occurs, the use irregular. is termed train, Deceased’s on resulting the run death, irregular his ran bridge, over that the is, ran east on the sоuth track. A moving train bridge east over the a enters tunnel at 9th Poplar streets, Louis, emerges St. tunnel Washington the at avenue. At the entrance to tunnel the de- fendant has what X-office, is called the Washington and at avenue, the MS-office. At the east end bridge J-office, Relay and near Depot in East St. Q-tower Louis is office. Defendаnt’s train dis- patcher is at X-office and other employees of defendant are charge of the other officesmentioned. J-office open was not at time Miller was struck and killed. When a train is to bridge cross the Louis, from St. rear the switch- man, place at the where the train is_ up, given, yard made the ,a master, small paddlе, leather staff, called a with a number on it. Also, a train crossing bridge the from St. Louis must have red light at rear. The staff is thrown off the rear switchman as the rear of passes train Washington station, MS-office, avenue and if employee defendant’s gets there light the staff and sees the red X-office, charge .the entrance rear, man in at оn then he notifies informa- receives employee Until at X-office the tunnel. that the red has the employee that at the MS-office staff tion no train on that train, on light rear eastbound other the tunnel. permitted track is to enter bridge, approach deceased’s Louis,
In St. and on the east East Q-tower. At against signal it at stoрped train set because standing drawbar of the rear car on time deceased the MS- passed train. In a few after train his deceased’s minutes *7 Washington avenue, gas passenger & Ohio electric office at Mobile track, train, eastbound, on south entered the tunnel at X-office the track, standing train on and deceased and while deceased’s the standing drawbar, train, 9 mov- on the M. & 0. about while the m., a. ing per hour, 10 or 15 ran rear of train about miles into the deceased’s and killed him. engineer
The evidence the'M. 0. the effect that the of & was to train an had unobstructed the train ahead for at least 558 view of stopped feet and could have or is his train within 90 100 feet. There no claim any that deceased was in manner at fault. Other facts will in opinion. be stated the course of the
Defendant that in contends its instruction the of a demurrer nature evidence, to the at case, given the should have been be- close cause, claimed, recovery lawfully it not, facts, could under the be Liability had under the Employers’ Act, Federal and because the ipsa not, facts, rule applicable. res under it Also, the is contended judgment $30,000 that the is excessive. 51, A., Sec. provides every U. C. that common carrier
by railroad, engaging while in in interstate commerce “shall be liable damages any person suffering injury by employed while he is such carrier in such or, in commerce,, employee, case of death such the of personal to his or her representative, surviving for the benefit of the widow or husband employee and of such . . . for such children injury resulting or death in or in part negligence whole the from of any officers, the agents, employees (italics ours). or carrier” of of-such Defendant contends that there is no substantiаl evidence to show that Miller’s death was caused “in part” by negligence whole or in the any employee of defendant, of therefore, and that there can no be recovery under the Employers’ Federal Liability Act. says:
In the brief defendant “Both decedent and at appellant the time of engaged the collisiоn were transportation. interstate consequence rights As the respondent of both appellant and be must by determined Employers’ the Federal Liability Act, under terms of which can recovery there no be employee unless the relation and of employer exists injured between the person and defendant, re- spectively, and negligence the latter’s proximate shown to injury.” cause of the former’s Armstrong v. law as declared pleaded Illinois Plaintiff 478, to the 426, 183 N. E. Co., 350 Ill. R.
Chicago & Western Ind. railroad another permits of a railroad the owner that where effect by operation negligent injury and an results tracks to use its the owner transportation, other, engaged in interstate while Employers’ the Federal severally liable under jointly user are over track which the railroad Liability It admitted that Act. de and killed running it struck when ran and was & 0. train M. defendant, and it the control by under ceased, and was was owned its for the use paid & defendant M. 0. was admitted company any other railroad paid “on basis that is trаck same way,” and same who the track operator or a railroad uses & 0.M. railroad use of defendant’s admitted that the it was Also, it defendant.” knowledge and consent of the with the “was controlled all the switches “owned and that defendant was admitted . . with their tracks . signals appliances used in connection operation of the track (and) all in connection with the devices itself.’’ Armstrong re- Court, case, in the Supreme The Illinois 248, Sup. Zachary, 232 U. S. Ct. on North R. Co. v. lied Carolina there, holding that, under the facts both 305, 58 L. Ed. for the user, owner and the were liable under companies, railroad *8 ’ case, Liability present Act, and in the brief in the Employers Federal Zachary say support counsel for that the case “seems to able defendant Armstrong case,” say in the but counsel that rule announced the Supreme the have “later decisions of the Court of United States ’’ away Zachary holding. broken the that, recovery support facts, under the cannot To the contention Employers’ Liability Act, be had Federal defendant relies under the 84, Co., & 35 Sup. on Robinson v. Ohio R. 237 U. S. Ct. Baltimore 491, 849; Chicago 452, 239 Wagner, 59 L. & Alton R. v. Ed. Co. U. S. Sup. 135, 379; Hull, Admx., Philadelphia 60 Ct. L. Ed. v. & Read ing Ry. Co., 475, 358, 64 L. 670. Sup. 252 U. S. Ct. Ed. etaking up Befor we consider North these cases Carolina R. Co. Zachary, supra. ease, v. From that it a fire appears that locomotive man, Railway employ while Company, in the of the lessee of Southern duty & in & Ohio, Baltimore was killed while on the B. the 0. switch ’ yards. ruling In that the cause one under the Employers was Federal Liability Act, the court said U. S. l. c. : [232 254] (of Carolina) Logan the local “Under law North as laid down in Railroad, v. 116 N. responsible Car. lessor for all of the acts negligence occurring in upon of its lessеe the conduct of business road; upon ground the lessor’s and this the a corpo- that railroad duty public by leasing ration and responsibility cannot evade its its road in corporation, expressly to another the of a statute absence employes of responsibility is held to extend to The exempting it. ’’ through negligence the latter. lessee, injured the of a Ohio, plaintiff Pull supra, Baltimore & was In v. Robinson a Pullman which such, charge “in of car was porter and as was man ’’ part a an train. He defendant as of interstate being by the hauled by negli alleged to have been caused injured a collision in was plain in defendant introduced evidence gencе defendant. The of the By Company. the Pullman such employment contract of tiff’s corporations all railroad over whose contract, “released plaintiff might was operated be he travel company of that while lines the cars liability any for of nature char ‘from all or ing in its claims service ” any injury personal or dеath.’ It on account of acter whatsoever employee an porter Pullman was not of the railroad held that the was meaning employee the term in the Em Federal company within ’ S. l. : Liability Act. court said U. c. The ployers [237 94] Congress opinion ‘employe’ that used the'words “We are sense, in their natural ‘employed’ in the stаtute intended employer employe. relation of It to the' conventional describe persons engaged that were on interstate trains well known there was Congress, masters. familiar-with in other this various services any appropriate expression situation, not use which could did be among purpose persons a includе to indicate to taken those was liable company railroad under the act. to whom the We employe in plaintiff error not an conclude that of the defend- meaning Liability company Employers’ ant within Act.” R. Chicago Wagner, appears Wagner Alton v. it supra, In & Co. charge switching crew Burlington conductor of the was а Railroad, train, moving, his Chicago, and with over the track Alton, being track Chicago & which Burling used arrangement with Alton Company.” “under an ton He was by striking post injured semaphore alleged which was have been dangerous proximity “in to the The track.” cause involved the validity brought of a release. It was not nor tried under the Federal Liability However, Act. Employers’ the court said this U. S. [239 c. : l. 456] allegations original “There were declaration to the effect *9 Wagner, at the time of the injury, engaged that was in interstate Burlington the employe Company, commerce an of as but it to seems agreed upon been the trial that governed by the action have was not statute; mаnifest, and indeed the Federal this Burlington was as the Company party not a to the Company action and the was Alton was plaintiff’s employer. not v. Co., the Baltimore & R. Ohio [Robinson ” It a 84, 237 S. was tried as common law U. action on the case. 91.] Ry. & Hull, Admx., Philadelphia Reading v. Co., supra, was under Liability Employers’ the Federal Act. It appears that John employ Maryland Hull the M. in of Western Railway the Com- Hagerstown, a from operated an line pany, interstate carrier which point with Pennsylvania, at which it connected Maryland, Lurgan, to Rutherford, Penn Lurgan to road defendant extended whose by the- Western sylvania. freight operated Through were trains Rutherford, Maryland, Maryland Hagеrstown, to Company from being operated over Pennsylvania. train was Hull was killed while his agreement the two operating between defendant’s line. There was an of the Phila employee held was not an companies. It that Hull meaning employee in within of delphia Reading Company & the him agreement not make act, oрerating Federal and that did the the l. such. The court c. : said U. S. [252 480] clear each control of its own train company “It is that retained upon road was crews; that what the latter did line of other the the that, part duty general employer; the far of their and done as so they subject company the of upon as were while traсks the other rules, regulations, the discipline, orders, purpose its this coordinating operations their to the of movements other the own- securing safety ing company, furthering concerned, of all general object agreement companies. of the between the Standard [See Anderson, 215, Oil v. North Co. U. S. R. Carolina Co. v. 226.] Zachаry, cited, point, U. is but not in is since that case parties the relation of was controlled dominant rule law, agreement local to which operative analogy.” th.4* here has no quite clear, It if think, is we that a local there is law such as existed Zachary case, supra, in the present case, as exists in the then employee, injured an facts, or killed under as'here, an action for' injury properly such bility or death is under Employers’ the Federal Lia- present case,
Act. In jury the trial court instructed the “that under law agents of this case servants the re- of the & Company, ceivers Mobile Ohio Railroad charge passenger train evidence, mentionеd in regarded by you are to be as agents and servants of the defendant.” In view of the local law obtaining in Illinois, we correctly think the instruction stated the law. ipsa Was rule, the res under facts, applicable? In the ‘‘ says
brief defendant this: There is here involved a collision between moving trains over appellant’s only two track, one of which was control, under exclusive, inclusive or of appellant; whereas one of requisites cardinal application for the of that (res ipsa) doctrine control the instrumentality exclusive producing injury must person charged with negligence.” In view of our ruling that the local law of Illinois employees made the 0., of M. the & in law, the employees of defendant in so far as responsi concerns bility for the Miller, death of and also in view of the fact that dis patch employees office of defendant controlled the movement of both trains, we rule ipsa that the rule applicable. res
955 judgment $30,000 for excessive? At Is the the time of Miller’s years expectancy years. he 56 old and his 16.73 death, was was His administratrix, wife, who, plaintiff, 53, and her expectancy as years. 1939, earnings $2843.02. In were was 18.79 deceased’s From January July earnings 1, 1, 1940, jury $1404. his were The finding plaintiff, damages for instructed that if the assess “at you may fairly find and believe from the such sum as evidence and reasonably present value, cash represents the as date Miller, benefits, pecuniary any, you F. if death of Ernest as surviving may find and believe the wife said Ernest F. Miller reasonably expected might to receive from have said Ernest F. Miller Michigan if had he not been killed.” R. Vreeland, Central Co. v. [See 57, Sup. 192, S. 33 L. U. Ct. Ed. Plaintiff'testified that 417.] home, gave for the her husband her “between $90.00 and $95.00 twiсe husband, month,” a and since the death of her “the amount of our per bills is decreased about $20.00 month.” It appear does not may who be included in our. We think that uniformity the rule of nearly to amount will judgment as be more observed if the is reduced $5,000. City Ry. Co., Hancock v. Kansas Terminal 166, 347 Mo. [See 627, (2d) 630; 146 W. l. Ry. (Mo. S. c. Sibert v. Litchfield & M. Co. Sup.), (2d) 612, 618; Finley 159 W. S. l. c. v. St. Fran Louis-San Co., (2d) cisco R. 349 Mo. 160 W. c. 735, l. 740.] will, If plaintiff days filing within 10 from the opinion, of this file $5,000, judgment here remittitur of $25,000 will affirmed,
otherwise, judgment will and be reversed the cause re- Hyde manded. Dalton, It is CG., so ordered. concur.
PER foregoing opinion Bradley, C., CURIAM:—The adopted opinion as the All judges court. concur. Worshipful
Charles M. Powell Sadie E. Powell v. The Most Lodge Accepted Masons for the State Grand Ancient Free of Missouri and Corporation, Jurisdiction, Its Masonic Appellants. (2d) R. S. W. 1038. Hill, Leon One, July 1,
Division 1942. Denied, July
Rehearing 28, 1942.