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ition puts into the mail his answer accept- Each of these companies had samples of the ing it, or does any equivalent act." Hauck grain on May 28, 1903, at the board of trade. Clothing Co. v. Sharpe, 83 Mo. App. 385. An Plaintiff bought the wheat from these samater and acceptance constitute a bargain. ples on that day, and ordered the grain comStotesburg v. Massengale, 13 Mo. App. 226. panies to send the cars to the yards of the On this question we take it for granted that Hannibal & St. Joseph Railroad Company. It is not necessary to quote authorities. We It is a matter of dispute as to what time in will not comment on the authorities cited by the afternoon of the 28th the defendant got appellant to sustain its position, for the rea- the order. It was the custom of the comson that they do not apply.

pany, and perhaps the expectation of parties As the plaintiff had contracts binding him dealing with it, to "card" such cars for transto delirer potatoes of the kind and quantity fer next day when the order was given before described, and as he was compelled to go 4 o'clock the preceding afternoon. If the on the market and purchase others for the order was given after 4 o'clock, it could not purpose of complying with his contracts, he be carried out until the second day. The cars Tis entitled to the difference between what could have been transferred the next day (the be was to pay Kennedy and what he was 29th) after the order given at the board of compelled to pay for them in the market. trade, but on the next day (the 30th) the The damages were not in any sense specula- great flood of 1903, caused by the overflow time, but were actual and certain in amount. of the Missouri and Kansas rivers, suddenly

The case was tried upon the correct the- advanced to such unprecedented stage as to ory, and there was no error in giving plain- make it impossible to move the cars, and it tifs instructions.

finally reached such height as to practically Affirmed. All concur.

destroy the grain. Plaintiff does not claim that the cars could have been moved on or after the 30th, but bases its right to recover

solely on the charge that defendant was negMOFFATT COMMISSION CO. V. UNION ligent in not transferring them on the 29th. PAC. R. CO.

1. In view of our conclusions as to the law (Kansas City Court of Appeals. Missouri. of the case, we will assume that defendant June 5, 1905.)

got the order to transfer the cars from its 1. CAESIEBS-INJURY TO GOODS-ACT OF GOD.

track to the yards of the Hannibal Company While a carrier is responsible for an injury in time on the afternoon of the 28th to have caused by the concurrence of its negligence with made the transfer, in usual course of such an act of God, yet such injury must be a nat

business, on the 29th, and that in not doing so oral and probable consequence of the negligence, and not an unusual and unanticipated conse

it was guilty of negligence. Is the defendant quence, such as an injury to goods caused by liable on account of such negligence for a loss in unprecedented and unforeseen flood, to which occasioned by the act of God? It is generally the carrier's negligent delay in moving the goods

stated to be the rule of law, and it is so held subjected them. 2 SAVE-BREACH OF CONTRACT.

in this state, that where there is negligence À carrier is not liable, on the theory of concurring with the act of God, and but for breeb of contract, for the destruction, by an such negligence the injury would not have I foreseen and unanticipated food, of goods

occurred, the person guilty of the negligence which it delayed to transport, as such conse

will be liable. Çfare was not in the contemplation of the

Davis V. Ry. Co., 89 Mo. parties as a probable result of the breach. 340, 1 S. W. 327 ; Pruitt v. Ry. Co., 62 Mo.

540; Coleman v. Ry. Co., 36 Mo. App. 476. Appeal from Circuit Court, Jackson Coun

But the injury must not be too remote. It ty: W. B. Teasdale, Judge.

must be a natural and probable consequence Action by the Moffatt Commission Company

of the negligence. That is to say, the injury against the Union Pacific Railroad Company.

must have some natural connection with the From a judgment for defendant, plaintiff ap

negligence, in the probable course of affairs. Leals. Affirined.

Holwerson v. Ry., 157 Mo. 231, 57 S. W. 770, Harkless, Crysler & Histed, for appellant. 50 L. R. A. 850; Brewing Ass'n v. Talbot, X. H. Loomis and I. N. Watson, for respond- 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. tot

538. If the injury, as a consequence of the

negligence, is beyond the usual experience ELLISON, J. This action is to recover and expectation of mankind, there ought not damages by reason of the negligence of de to be a liability. It would not be improper feodant in delaying the delivery of two cars to ask the question, what are the probable d beat, whereby they were destroyed by a consequences which might happen from the food of such unprecedented character as to neglect ?--not, what are the possible consebe admitted to be an act of God. The judg- quences. Stone v. Ry. Co., 171 Mass. 536, 51 Dent in the trial court was for the defendant. N. E. 1, 41 L. R. A. 794. In Scheffer v. Ry.

It appears that two cars of wheat were Co., 105 U. S. 249, 26 L. Ed. 1070, Scheffer stipped by different persons over defendant's was injured through the negligence of the med to Kansas City, Mo.; that one car was railway company, so that he became insane gaigned to the Murphy Grain Company, and committed suicide. It was held that the 21 the other to the Benton Grain Company. death in that manner was not the natural and probable consequence of the negligence, or diligence (with reference, of course, to and could not reasonably have been foreseen such act), then there is liability. It follows or expected. It might be negligence to delay that, if there was no notice or expectation putting certain goods under shelter in the of such visitation of God, there is no liability, month of July to protect them from rain or for in such case there is no concurrent neglithieves; but if left out, and the unheard-of gence at time and place. The immediate inoccurrence (in this climate) of a freeze at jury and result in this case was occasioned that season was to occur and destroy them, by the sudden great and unprecedented flood would there be any natural connection be- of 1903. It was a result almost altogether tween the neglect and the loss? And so it out of the course of nature. Its like had has been held in this state there where the probably not occurred in the memory of any carrier negligently delayed the transporta- one living. Loss from such a cause was tion of goods, so that the public enemy came wholly unlooked for, and was not to be exupon them and took them from him, he was pected or even taken into consideration by not liable; it not being shown that he knew the most cautious. of the presence of the hostile force. Clark 2. So, if we should regard the case as one v. Ry. Co., 39 Mo. 184, 90 Am. Dec. 458; Bal- arising from a breach of the contract to lentine v. Ry. Co., 40 Mo. 491, 93 An. Dec. transfer the freight from one yard to another 315. The same principle is announced in an for delivery to the assignee of the consignee, interesting case in Pennsylvania. Morrison the result would be the same. The conse v. Davis, 20 Pa, 171, 57 Am. Dec. 695. And quences of a breach of contract must be such in Denny v. Ry. Co., 13 Gray, 481, 74 Am. as were or should have been in the contemDec. 645, which, as in this case, was where plation of the parties as a probable result of a flood injured goods which would not have the breach. Hyatt v. Ry. Co., 19 Mo. App. been exposed but for the carrier's delay, yet 287, 300; Pruitt v. Ry, Co., 62 Mo. 527; he was held not liable, And so in the like Murdock v. Ry. Co., 133 Mass. 15, 43 Am. case of Railroad Co. v. Reeves, 10 Wall. 176, Rep. 480; Walsh v. Ry. Co., 42 Wis, 23, 24 19 L. Ed. 909. In Morrison v. Davis, supra, Am. Rep. 376; Hobbs V. Ry. Co., 10 Law the court, after stating that one is only liable Rep. (Q. B.) 111. In the last case it is said for the natural and proximate results of his that: “What infinite difficulty there would negligence, gives this illustration: "A black- be in attempting to lay down any principle smith pricks a horse by careless shoeing. or rule which shall cover all such cases! But Ordinary foresight might anticipate lameness, I think that the nearest approach to anything and some days or weeks of unfitness for use, like a fixed rule is this: That, to entitle a but it could not anticipate that by reason of person to damages by reason of a breach of the lameness the horse would be delayed in contract, the injury for which compensation passing through a forest until a tree fell and is asked should be one that may be fairly killed him or injured his rider; and such in- taken to have been contemplated by the parjury would not be a proper measure of the ties as the probable result of the breach of blacksmith's liability.” And (borrowing the the contract. Therefore you must have someidea from an illustration in counsel's brief) thing immediately flowing out of the breach if a train should for two hours be negligently of contract complained of—something immedelayed in leaving a station, and meantime a diately connected with it, and not merely constorm should arise, and lightning strike a nected with it through a series of causes incar and destroy property, the carrier would tervening between the immediate consenot be liable. The result would be beyond quence of the breach of contract and the damnatural expectation, not within the thought age or injury complained of.” Archibald, J., or foresight of any one, and altogether fortu- in the same case, expressed his view in the itous and disconnected from the negligent act same way: “I concur in the observations of delay. So the rule may be stated to be which have been made by my lord and my this: That the act of God must be the sole learned brothers, and I would only add, withcause of the loss or injury, and, whenever the out expressing anything in the form of a rule, negligence of the carrier mingles with the act that, in case of breach of contract, the party of God, as a co-operative cause, he is liable, breaking the contract must be held liable for provided the resulting loss is within the prob- the proximate and probable consequences of able consequences of the negligent act; oth- such breach; that is, such as might have erwise it will be too remote and disconnected been fairly in the contemplation of the parto be considered the proximate cause. As is ties at the time the contract was entered insaid in St. Louis, I. M. & S. R. Co. v. Com- to." mercial Union Ins. Co., 139 U. S. 237, 11 Sup. Since the foregoing was written, an opinion Ct. 554, 35 L. Ed. 154, it would be considered by Judge Goode in the case of Grier v. Ry. “simply as one of a series of antecedent Co., 108 Mo. App. 565, 84 S. W. 158, has been events, without which the loss could not have reported, in which we find support for what happened." If, as said in Wolf v. Express we have said in the first division herein. Co., 43 Mo. 421, 97 Am. Dec. 406, the act of Approving the view taken by the tria? God might bave been avoided by foresight | court, we affirm the judgment. All concun:

had a wooden plug driven in the end, were a WIIALEY v. COLEMAN et al.

little less dangerous than steel. It appeared Kansas City Court of Appeals. Missouri.

that defendants had furnished two of the lat. June 5, 1905.)

ter and several others without the wooden 1 SEBVART'S INJURIES-CONTRIBUTOBY NEG

plugs. However, it was a fact that at times LIGENCE

plaintiff and others used the steel drill with A servant is not precluded from recovery the knowledge and consent of def lant for injuries sustained by the negligence of the zaster if the risk, which was known to the

foreman, and when plaintiff called his atservant, is not of such a character that a rea

tention to the matter, and requested to be saalls prudent person would not continue in furnished with gas pipes, he said: “All the service.

right; go ahead, and use the steel. It will be Ed. Note.-For cases in point, see vol. 34, all right; but don't punch the powder." Cent Dig. Master and Servant, $8 574-600.)

Plaintiff did not request the foreman to fur2 SAVE-EVIDENCE. Where in a mine it was customary to push

nish him a gas pipe with a wooden plug, but giant powder into holes in the rock by means

one about 10 feet long, as he had objections of pieces of gas pipe with wooden plugs driven to some of those in use because they were in the end, and a miner, finding that the pieces not sufficient in length. At the close of plainof gas pipe were in use by others temporarily, çized å stiek of powder by means of a shank

tiff's case, and also at the close of all the of a steel drill belonging to himself, and was

evidence, the defendants asked the court to izjired by an explosion from a spark resulting instruct the jury to find for them, which the from the contact between the steel drill and

court refused to do. The verdict and judgthe flinty rock, he could not recover, because of bis contributory negligence.

ment were for plaintiff, from which defend

ants appealed. Appeal from Circuit Court, Jasper County;

The contention of defendants is that the Hugb C. Dabbs, Judge.

plaintiff's injuries were the result of his Action by J. N. Whaley against M. L. Cole

own negligence, and that he assumed the man and others. From a judgment in favor

risk; that the court admitted incompetent of plaintiff, defendants appeal. Reversed.

evidence; and that it committed error in givThomas & Hackney and Edw. J. White, ing and refusing instructions. It is conceded for appellants. Howard Gray and H. H. that the steel drill used by plaintiff's helper Bloss, for respondent.

under his direction was unsafe and danger

ous, of which plaintiff, an experienced workBROADDUS, P. J. The plaintiff's suit is

man, was fully aware. But he seeks to avoid for damages alleged to have been sustained

the responsibility of using the instrument on by him while in the employ of defendants, a

the ground that he had called the attention zine mining co-partnership. The plaintiff, an

of defendants' foreman to the matter, and experienced miner, was injured on August

that he continued to use it under a promise 5, 1902, by the premature explosion of a stick

that he would be furnished one safer and giant powder, wbich the plaintiff's assist

more suitable for the work. The general ant under his direction, was pushing into a

rule in such cases is that, the servant condrilled bole, using for the purpose the shank

tinues his employment, he is not precluded of a steel drill. It was shown that the holes, from recovering for injuries sustained by reaafter being drilled, were usually filled with son of the negligence of the master if the the explosive late on each day, and exploded

risk is not of such a character that a reasonbefore the next shift of miners began their ably prudent person would not continue in work. The hole into which plaintiff and his

the service. Nash v. Dowling, 93 Mo. App. telper, a man by the name of McKinley, were

156; Holloran v. Iron Foundry Co., 133 Mo. pitting the explosive, was drilled in flint 470, 35 S. W. 260; Weldon v. Ry., 93 Mo. rock. It is conceded that a spark of fire was App. 668, 67 S. W. 698; Hamilton v. Mining thrown off from the flint when it was struck Co., 108 Mo. 377, 18 S. W. 977; Wendler v. with the steel drill, which spark, coming Furniture Co., 105 Mo. 528, 65 S. W. 737. in contact with the giant powder, caused the And whether a servant would be justified in explosion. The steel drill was not an instru- continuing his services under the circumstanLent intended for the purpose of what the ces is a question for the jury. Francis v. Ry. miners call "loading the drill holes," or Co., 127 No. 628, 28 S. W. 842, 30 S. W. 12g boving the powder" into them. But sec- Williams v. Ry. Co., 109 Mo. 475, 18 S. W. tions of gas pipes with wooden plugs in the 1098; Ry. Co. v. Mares, 123 U. S. 710, 8 Sup. ends were generally used, because they were Ct. 321, 31 L. Ed. 296; Hamman v. Coal Co., less liable to cause explosions. At the time 156 Mo. 232, 56 S. W. 1091; Adams v. Har

question plaintiff endeavored to get a cer- vesting Co. (decided by us, but not yet offitała piece of gas pipe for his purpose, but, as cially reported) 86 S. W. 484. But there are it was being used by other workmen, he exceptions to all general rul Where there substituted the steel drill. It is shown, how- is no conflict, but the evidence is all one way, erer, that he could have obtained the former and there can be but one conclusion, the matby waiting a short while. All the miners ter becomes a question of law for the court. were aware of the danger of using a steel The use of the steel drill by the plaintiff was cil for loading or tamping the drilled holes. an act of the grossest negligence. It is a It was also shown that gas pipes, unless they matter of common experience that where

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steel and fint are forcibly brought in contact the result will be sparks of fire, and that fire coming in contact with powder produces an explosion. And no one knew such to be the case better than plaintiff. He was not authorized by anything that was said by the foreman to use the drill, because he was equally as well informed of the danger as the foreman. On the face of things, the risk was so glaring, and at all times impending to such a degree, that no person of ordinary prudence could for a moment have believed that the drill could be used, by the exercise of ordinary care, with safety. A servant is not bound to obey the master when he has reason to anticipate that danger in the service is always inpending, and that he is liable to suffer injury at any moment, which the greatest care and caution on his part will scarcely avert. And besides, he was not bound to use the steel drill. He could have waited for the gas pipe a short time, it being only in temporary use by others. But he roluntarily selected the steel drill, the most dangerous implement for the purpose. There is no dispute on that point. It was his own implement. For which reason he was not entitled to recover. Nolan v. Schickle, 09 Mo. 336; Moran v. Brown, 27 Mo. App. 487. His excuse was that it was as well that he should use the steel as for the others to do so. A servant who, as between two methods, selects that which is the most dangerous, and jured in consequence, is guilty of negligence, and not entitled to recover. Moore v. Ry. Co., 146 Mo. 572, 48 S. W. 487. As the plaintiff was not entitled to recover, the court committed error in not sustaining defendants' demurrer to the evidence. As the question already determined is decisive of the case, other questions raised become immaterial.

For the reason given the cause is reversed. All concur.

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BROADDUS, P. J. On May 1, 1902, plaintiff recovered judgment against the defendant William E. Gibson for $3,217.83. Execution was issued thereon, directed to the sheriff, who on the 230 day of said month summoned James A. Gibson as garnishee. The latter filed a general denial. During the course of the proceeding plaintiff filed an amended denial to garnishee's answer, and garnishee filed an amended reply thereto, upon which the cause was tried. The court, after the close of the evidence, instructed the jury to find for the garnishee. A verdict was accordingly rendered, and judgment given thereon, from which plaintiff appealed.

The allegations of plaintiff's pleading are that defendant entered into various contracts, with the knowledge and consent of the garnishee, from which certain indebtedness accrued to him, and that said garnishee collected the proceeds of said contracts, and now retains them in fraud of defendant's creditors. One of these contracts was to construct certain walls and abutments for the St. Joseph Stockyards Company, entered into on the day of -1902, and one for paving a certain street in the city of St. Joseph. Plaintiff alleges that the garnishee collected and had on hand from said contract the following amounts of money, to wit: June 2, 1902, $305.10; June 16, 1902, $463.80; and on May 26, 1903, $500 from the St. Joseph Stockyards contract; and on October 3, 1903, $1,160.75 from the street-paving contract. The garnishee answered substantially that defendant became so involved financially that he was unable to finish said street contract, and that he assigned the same to one Solomon Connett; that it was agreed by said Connett at the time he took said assignment that he would reimburse to the garnishee the sum of $250 for labor already performed on the contract, and for which he had assigned labor claims for work done on the same; and that afterwards, in May, 1902, said Connett entered into an agreement with the garnishee by which the latter took an assignment of said contract, and in consideration thereof he released defendant and the said Connett from their obligation to repay to him said sum of $250; and that garnishee entered into and performed said street-paving contract at his own expense, and that the money arising there. from is now on deposit to await the disposi. tion of this suit, as agreed by the parties hereto. The defendant also sets up as a defense that W. E. Gibson was on the 13th day of January, 1903, duly declared a bankrupt by the United States District Court at St. Joseph, and on April 9, 1904, received his discharge from said court, and that thereby

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WHITE V. GIBSON. (Kansas City Court of Appeals. Missouri.


The question as to whether the garnishee bad collected and held moneys which he retained in fraud of defendant's creditors held, under the evidence, one for the jury. 2. SAME-EVIDENCE.

Where there was evidence to show conspiracy between defendant and the garnishee to defraud the defendant's creditors, it was error not to permit plaintiff to introduce the application of defendant to the federal court; the offer reciting that defendant applied for a discharge in bankruptcy in order to restrain further action on the garnishment proceedings until after his discharge.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by William M. White against James A. Gibson, garnishee of William E. Gibson.



the judgment

this action

against him.

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their property

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Tas ulscharged, which in law is a bar to
OP plaintiff against W. E. Gib- visited defendant's house, but gained no in-

formation. In a short time thereafter he
ons of the petition he meets by a general
The other allega- met the garnisbee, and a conversation arose

about Greenfield's visit to defendant's house,

when the garnishee said to him that plainIt appears from the evidence that the con- tiff was welcome to all he could get out of tract for de street paving was made by them, as matters had been “arranged” or paintiff and defendant some time in the "fixed." The defendants were father and son, Jear 1901, and that in November of that year The garnishee offered no evidence. te partitership

plaintiff and defendant The assignment of the contract for the was brought into court, and street improvement by defendant to Connett placed in the hands of a re- in January, 1902, and his subsequent assign

authority from the court, ment of it to the garnishee in May, without sereral

car loads of the firm's stone, any apparent consideration for the same, intben at Hallard, Mo., to defendant, a part dicates that Connett had no interest in the of which was used on the street improvement business whatever; and, besides, it is not contract. Other stone was shipped in March alleged in garnishee's answer, nor does it and April, 1902, from Hallard by defendant, appear from the testimony, that at any time and used on said street. The receiver's re- he did any work or expended any money on port sbows that on March 20, 1902, he collect- the street improvements, although much ed from W. E. Gibson $61.15 for crushed work was performed and materials furnishrock and gutter stone. The report of the re- ed between the time he received the assignceiver also shows that between the 3d day ment and his assignment of the contract in of March and the 2d day of April, 1902, de- May to the garnishee, during which time the tendant purchased from him and shipped inference is that the work was being done from the quarry at Wathena nine cars of and the materials furnished by defendant, robblestone, which was also used on said as he was in charge, and no one else was street. Some work was done on the street connected with the business. It is not charE question in the fall of 1901, and the great-ged by the garnishee in his answer, nor er part finished during the months of March, shown by the evidence, that he paid any othApril, and May of the next year. The books er consideration for the contract than the of Farmer & Dunn, who furnished material $250 he held for labor claims, although at for the street work, showed that material that time the greater part of the work had Tas furnished from June 25th to July 12th, been done, and the greater part of the maand charged to defendant, but that the gar- terials furnished therefor by defendant. On nisbee paid for it. A person who represent- the face of the record, Connett figures as an ed the property owners along the street stat- intermediary, without any interest of his ed that he did not know that the garnishee own to serve. And we can see no purpose had anything to do with the work until it which he could serve, without the parties to Tis completed. The contract for the work the transaction had something in view that on the stockyards also required stone, sand, they did not wish to divulge. In view of the and lime. The stone came from Wathena, admitted pecuniary condition of defendant, Kan. The waybills show that it was shipped the evidence tended to show that the intenOfer the railroad in the name of defendant, tion was to hoodwink defendant's creditors. both as consignee and consignor, until May And this view is strengthened when we tid, at which time, the garnishment was come to consider the fact that defendant re

served, after which time, for stone shipped, ceived nothing from the garnishee for a
De garnishee was both consignee and con-
egoor, The evidence disclosed that defend-

great part of the work he had done and maant was in charge of the work, and signed

terials he had furnished under the contract. ant was erased from the receipts after May receipts for freight. The name of defend

The fact that the garnishee had advanced

$250 for labor claims on the work does not 19th up to the time the freights were con

account for any sufficient consideration for

the assignment of the contract at that time, But it does not

as it was of much value by reason of the appear at whose instance this was done. Sand for the work was bought, charged, and

extent of its performance. To say the least

of the transaction, it was an unusual way of delivered to defendant until May 14th, and after that time to garnishee. And the lime

doing business, and, as such, was a badge of and cement were charged and delivered to

fraud. Snell v. Harrison, 104 Mo, 158, 16 S.

W. 152. It was a circumstance tending to defendant until May 19th. The book conaining a cha rge of material to defendant

show fraud. Burgert v. Borchert, 59 Mo. 80; of the date of May 19th was changed by a

Stewart v. Severance, 43 Mo. 322, 97 Am.

Dec. 392. The change of consignor and conline drawn through the name of defendant, and by writing the name of garnishee over

signee at once from defendant to garnishee, it. It was shown that plaintiff, after the

of materials shipped to be used in the work, so soon after the service of garnishment, the

almost constant supervision of the work by him in learning what prop- defendant, and the language of the garnishee owned. For that purpose he to Greenfield, that plaintiff was welcome to

signed to the garnisbee.

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