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that it had been used in many places about at the time exercising reasonable care and the works, and was an old chain.

prudence in handling the same,-then you the chain looked well enough to him, though should find a verdict for the plaintiff, unhe never examined it until after the accident; less you should further find and believe from that he never received any orders from the the evidence that the plaintiff knew of the master mechanic or from the foreman of defects in said link, or by the exercise of the machine shop to inspect and that reasonable care might have known of it was not his duty to inspect it, or any of them.” “Unless plaintiff was employed by the machines. He, however, did keep his defendant as foreman of its blacksmith shop, own tools in repair. He says he did not and was given the supervision of the same, know much about chains, but that this de- together with the appliances therein, and it fect could have been easily detected by a was his duty, by virtue of his employment competent inspector. His cross-examination as foreman of said shop, according to the tends strongly to show that he was as com- regulations and course of business of depetent to inspect the chain as any one could fendant, to see that all the tools and applibe. Indeed, he says he thinks he would

were kept in repair, or report all have thrown the whole chain away as unfit needed repairs to his superiors, he would not for use had he examined it just before the be required to inspect said cha for the accident. He says, before swinging the 18- purpose of discovering any such defects or foot iron shaft around from the forge to the impairments which might be therein not obanvil to cut in two, he caused a bar to be servable by a reasonable, careful, prudent placed from the forge to the anvil; that he man while using or handling the same.” did this because the shaft was so heavy, he "You are also instructed that if you believe was afraid the whole crane might give way; and find from the testimony in this cause that this bar was not used after the shaft that piaintiff was employed by defendant as had been cut in two; that this was the foreman of its blacksmith shop, and that heaviest piece of metal he had ever handled plaintiff asked defendant to erect in his shop with the crane; and that he supposes trusses the said crane, and that plaintiff was given could have been used, instead of the crane. the supervision of said shop, and that it was It appears from the testimony of the wit- his duty, by virtue of his employment as nesses called by the defendant that cranes foreman of said shop, according to the reg. with chains were used in the casting hall, ulations and course of business of defendand that they were inspected by a man ant, to see that all the tools and appliances employed for that purpose, but it does not used by him in his shop were kept in repair, appear that this person ever inspected the or report the same when out of repair to his crane in the blacksmith shop. The evidence superiors, then the plaintiff cannot recover; of Prentice, foreman of the machine shop, or if you should find from the evidence that is that he caused machinery to be repair the crane was not furnished by the defended when reported to him as out of order; ant to be used in the handling of as heavy a that he oft gave plaintiff orders for work. piece of metal as the steel shaft mentioned in Prentice occupied a position subordinate to the evidence, and that plaintiff, knowing this, Seddin, the master mechanic. Seddin testi- negligently put said shaft in the chain atfied on cross-examination that it was his tachment to said crane, by which the chain duty to exercise a general supervision over was broken, then, and in that event, plaintiff all the machinery in the factory, including cannot recover in this action.” the machine shop and the blacksmith shop 1. The master, in procuring machinery and and the foundry, and to see that it was kept appliances, must use reasonable care and in repair; and that the plaintiff was sub- precaution to see that they are safe and fit ordinate to him. He says he never gave the for the designed use; and he must use like plaintiff any instructions as to what his care and precaution to see that they are kept duties were, and never directed him or any in good order and condition. If the master other person to inspect the crane in the does not know of the defect, and reasonable blacksmith shop. He saw it and the chain, care on his part would not have disclosed it, but did not see or know of any defect. he is not liable; but, if reasonable care Prentice was present when the shaft was cut would have disclosed it, then he is liable, in two, and aided in that work. Indeed, he though it was not known to him. Porter v. directed the plaintiff to make the dies out Railroad Co., 71 Mo. 71; Bowen v. Railroad of this particular shaft.

Co., 95 Mo. 276, 8 S. W. 230. The fact that The court, of its own motion, gave the fol- the master and the servant have equal oplowing instruction: "If you believe said link portunities to discover the defect will not debroke by reason of its having become frac- feat a recovery by the servant, if the defect tured, corroded, and impaired by exposure was unknown to the servant, and the ordiand time, after it was provided by the de- nary and careful use of the machine or apfendant as aforesaid; that defendant knew, pliance would not have revealed the defect; or by the exercise of reasonable care might and this for the reason that it is not the duty have known, of the alleged defects in said of the servant to look out for defects, save link; and that plaintiff was not guilty of such as are open to his observation in the negligence in handling the shaft, but was ordinary use of the machine or appliance. Gutridge v. Railroad Co., 105 Mo. 526, 16 S. in repair and fit for use. Henry v. Railroad W. 943; O'Mellia v. Railroad Co., 115 Mo. Co., 109 Mo. 493, 19 S. W. 239. 217, 21 S. W. 503. Now, there is much evi- 3. There is no doubt but the plaintiff was dence tending to show that this chain was the foreman of the blacksmith shop, and, as old, cracked, and unfit for use at the forge. such, had charge of the various jobs of work. There is also evidence tending to show that sent to him. He also had control of his help. the defect was one which would not be dis

ers. Though a foreman, and to a limited excovered by simply using it, but that it could tent the defendant's vice principal, still he and would have been discovered by an exam- was the servant of the defendant. The fact ination made by a competent person, and that he was such foreman does not defeat that no such examination was ever made. bis action to recover for injuries sustained by The case was therefore one for the applica- reason of defective appliances, unless it was tion of the principles of law before stated, his duty to see that the appliances were kept and they are set forth in the instructions in order; and we have seen that this was a given. Cases are cited where servants have question of fact in this case, and not one of been held bound to see that instruments law. placed in their hands are fit for use, and the 4. The evidence bearing upon the objection principle may be correct as applied to simple that the damages are excessive is to the folinstruments or tools, like a spade, hoe, ham- lowing effect: On the first trial, plaintiff remer, or sledge; but we think this crane, with covered judgment for $15,000. At the trial its various appliances, presents a very dif- now under review, it being the second one, ferent case. But it is said it was the duty the plaintiff obtained a verdict and judgof the plaintiff to inspect the chain for the ment in the sum of $8,666. According to the purpose of discovering defects, if any there plaintiff's evidence, the bones of his ankle were. If it was his duty to inspect it, he were broken. He was confined to his house ought not to recover, for in that event the in- three or four weeks. After that, he used jury was the result of his own negligence. crutches for five or six months. He then, Whether he was bound to look for defects, and down to the date of the last trial, used other than those open to his observation in an apparatus consisting of iron braces and a the prudent use of the appliance, was a ques- cork-bottom shoe. At the time of the accition of fact, and was properly submitted to dent, he was earning from $75 to $90 per the jury. Surely, we cannot say, as a mat- month. He lost seven or eight months' ter of law, that it was the duty of the plain- time. At the expiration of that time, he betiff to inspect the chain. If it was, it was gan work at another place, and earned from also his duty to inspect each and every part $30 to $40 per month; and, at the date of the of the crane. The question whether the last trial, he was earning $2.70 per day, and plaintiff should have examined the chain for as much as $18 per week when he worked defects not observable in the prudent use of extra time. Dr. Cristoff examined the ankle it was one for the jury. It is earnestly argued while plaintiff was yet on crutches. He that plaintiff was negligent in attempting to found a fracture of the inside bone, and the handle so large a shaft by the use of the foot turned outward. Dr. Carson examined crane, and that he was negligent in standing the plaintiff shortly before the last trial. He so close to the shaft. It is no doubt true that says he found a thickening of one bone, but he could have discarded the crane in the in- he was unable to say whether it had been a stance in question, and used trusses; but it fracture; says the bones were all in proper does not follow that he was, as a matter of place. He found indications of a bruise, and law, guilty of negligence in using it. The the foot was drawn in by muscular conquestion whether he was guilty of negligence traction, so that less than half of the sole of in using this crane on the occasion in ques- the foot rested on the floor. He says the intion, or in standing close to the shaft, were jury impairs the strength of the leg, and the questions of fact for the consideration of the chances are that the injury is permanent. jury. The questions of negligence on the From this evidence, it appears that the part of the defendant, and of contributory strength of the plaintiff's leg is in all probnegligence on the part of the plaintiff, were ability permanently impaired; but he has fully and properly stated in the instructions not lost the use of it, and he appears to be given; so that we need not stop to consider able to earn as much as he did before the acthe refused instructions.

cident. It does not appear that he incurred 2. The further contention that the injury any expenses in and about being cured. He was caused by one of those risks assumed by was attended by the defendant's physician. the plaintiff when he entered the employ- We cannot escape the conclusion that the ment of the defendant cannot be sustained. judgment for $8,666 is excessive. Counsel The risks assumed by servants do not in- for the defendant insist that the judgment clude those which arise from the failure of should be reversed, though the plaintiff may the master to perform duties which are per- be willing to remit the excess. To this propsonal to him, and it is the personal duty of osition we do not agree. That the court has the master to use due and reasonable care the power to say a given verdict is excessive in providing appliances, and in keeping them is conceded on all hands, and, if it has such power, it can say what amount will not be that an error had crept into the final setexcessive. Aside from the excessive dam- tlement to the extent of $100, and, this beages, there is no error in the record; nor is ing admitted, the court, in its decree, cor!here anything in the record tending to show rected this error, by surcharging the defendthat the finding for the plaintiff was in any ant administratrix with that amount on acway brought about by prejudice or passion count of the admitted error, and found the on the part of the jury. Under these circum- other issues for the defendants, and assessed stances, this court will indicate an amount part of the costs against each of the parties. which, in its judgment, will not be excessive, The decree thus entered, from which plainand allow the plaintiff to take an affirmance tiff appeals, is the following: “Now, at this for that amount, or submit to a reversal of day, this cause coming on to be further of the judgment and remanding of the cause, heard, and was argued by counsel, and the as he may elect. Burdict v. Railway Co. (in defendants having stated in open court and banc) 27 S. W. 453. If the plaintiff shall re- admitted by their counsel that the sum of mit $3,666 within 20 days from this date, the four hundred dollars charged against the judgment will be affirmed for the residue; estate of Robert C. Nelson, deceased, as the otherwise the judgment will be reversed, and absolute property of the widow, by the decause remanded. The costs of this appeal fendant Ann Barnett, then Anr elson, adwill be taxed against the respondent. All ministratrix of said estate, in her final settle concur, except BARCLAY, J., who dissents.ment of said estate, filed in and approved by

the probate court of this county on the 14th day of May, 1885, and mentioned in the pe

tition, was so charged by mistake, having NELSON v. BARNETT et al.

already been charged in another item, it is (Supreme Court of Missouri, Division No. 2.

ordered by the court that plaintiff have leave June 12, 1894.)

to amend his petition, setting up such fact ADMINISTRATOR-FINAL SETTLEMENT

as ground for relief, which is done; and

RES JUDICATA-RENTS AND PROFITS - EXPENSES OF NEW

thereupon, upon consideration thereof, and DWELLING Wuex CHARGEABLE TO WIDOW – of all and singular the matters and things ACTION ON Bond-LIMITATION.

in the pleadings and evidence set forth and 1. The judgment of the probate court on the final settlement of the administrator's ac

contained, it is ordered, adjudged, and decounts is conclusive only as to matters actually

creed by the court that the said sum of four adjudicated by the court, and matters not thus

hundred dollars be, and the same is hereby, included may be adjudicated in an action to surcharged against the said defendant upon set aside the settlement on the ground of fraud. 2. Where deceased's widow is adminis

said settlement as of the said 14th day of tratrix, and dower has not been assigned her,

May, 1885, the date of the making and filthe right to the rents and profits of the land ing of said final settlement, and of the judg. cannot be adjudicated in an action to set aside her final settlement for fraud, though they were

ment of said probate court of Gentry county, not mentioned in such settlement.

Missouri, approving the same; so that the 3. Where a dwelling house is destroyed by

balance due to the said de ant Ann Bara cyclone, in which the head of the family is nett, late administratrix, thereon at said killed, the widow is not personally chargeable with $240 expended for work and materials for

date is and shall be the sum of eight huna new dwelling on deceased's land, since she

dred and ninety-six dollars and sixty cents has a right to remain on the farm during the ($896.60), instead of the sum of one thousand continuance of her quarantine, and she and her two hundred and ninety-six dollars and sixty children are entitled to shelter. 4. An action by an heir against an admin

cents ($1,296.60), as set forth in said settleistratrix and the sureties on her bond, to re

ment and judgment of the probate court; cover the proceeds of a sale of stock on hand and the court finds all the other issues for when the intestate died, and which were not the defendants. It is thereupon ordered reported to the probate court, and did not enter into her final settlement, is not barred un

and adjudged by the court that the defendtil ten years after such settlement, though plain- ants recover of the plaintiff the costs of tiff arrived at his majority five years after the witnesses, one day, and mileage, attending settlement.

court the 12th day of September, 1890, the Appeal from circuit court, Gentry county; | date plaintiff amended his petition, and Charles H. S. Goodman, Judge.

that execution issue therefor; and that the Action by Robert C. Nelson against Ann defendants recover of the plaintiff all other Barnett and others to set aside the final costs in this behalf expended, and that exesettlement of defendant Barnett, as admin. cution issue therefor." istratrix of the estate of Robert C. Nelson, Sr., deceased. From the decree entered,

H. S. Kelley and J. W. Sullinger, for applaintiff appeals. Affirmed.

pellant. McCullough & Peery and S. S. By this equitable proceeding, plaintiff Brown, for respondents. sought to set aside, on the ground of fraud, the final settlement of his mother, Ann Bar- SHERWOOD, J. (after stating the facts). nett (formerly Nelson), as administratrix of 1. The final settlement of an administrator the estate of his father, Robert C. Nelson, stands as firmly on an impregnable basis of Sr., deceased. It appeared at the hearing conclusiveness as does the judgment of any other court, and cannot be impeached except were not mentioned in the final settlement on the ground of fraud in the very act of made. As to the materials and carpenter procuring the judgment, or, as it is some- work, costing something like $240, these times expressed, in the "concoction" of the items were included in the final settlement, judgment. McClanahan v. West, 100 Mo., loc. and therefore cannot now be questioned. cit. 320, 13 S. W. 674, and cases cited; Nich- But they cannot be questioned for a reason ols v. Stevens (decided present term) 25 S. equally as valid. The dwelling house on W. 578. This has been the uniform ruling in the farm had been swept away by a cyclone, respect of final settlements of probate courts in which the father and head of the family in this state. Jones v. Brinker, 20 Mo. 87; | perished. The widow and children were State v. Roland, 23 Mo. 95; Barton v. Barton, entitled to a shelter while she and her chil35 Mo. 158; Picot v. Bates, 47 Mo. 390; Old- dren remained on the farm. She having the ham v. Trimble, 15 Mo. 225; Woodworth v. right to remain on the farm during the con. Woodworth, 70 Mo. 601; Lewis v. Williams, tinuance of her quarantine, we regard the 54 Mo. 200; Smith v. Sims, 77 Mo. 272; comparatively small expenditure used to Sheetz v. Kirtley, 62 Mo. 417; Miller v. build a small dwelling house as, under the Major, 67 Mo. 247; State v. Gray, 106 Mo. circumstances, a legitimate one, and prop526, 17 S. W. 500; and numerous other cases. erly allowed by the probate court; equally And resort cannot be had to a court of eq- as legitimate as if, instead of destroying the uity to grant a new trial, and permit the re- house, the cyclone had simply taken off the agitation of matters which have already roof, in which case it would seem that it been adjudicated. Murphy v. De France, could scarcely be doubted that the right to 101 Mo. 151, 13 S. W. 756. And it is well repair or renew the roof would be a reasonasettled that the procurement of merely ille ble and proper expense, subject to the apgal allowances, or the omission of proper deb- proval of the probate court. its in the account presented for a final set- 4. The final settlement in this case was tlementwill not render such settlement made in 1885, and the plaintiff attained his vulnerable to attack in a court of equity on majority on the 28th of September, 1890. the ground of fraud. Nothing presented by Under our rulings, the statute of limitations the facts in this case brings it within the does not run in favor of an administrator operation of the rule heretofore noted. on his bond until 10 years after his final set

2. But a judgment of a probate court on a tlement. State v. St. Genome, 8 Mo. 286; final settlement of an administrator is, of State v. Blackwell, 20 Mo. 97; State v. St. course, conclusive only as to matters there- Gemme, 31 Mo. 230. This being the case, in embraced. In order that any matter can if it be clearly made to appear that cerbe said to have passed in rem judicatam, it tain items, to wit, the proceeds arising must have been tried and adjudicated by from the sale of the stock on hand, were the court. 2 Woerner, Adm'n, $ 506, and not reported to the probate court, and did cases cited. And it has been determined in not enter into the final settlement of the adthis state that parol evidence may be intro- ministratrix, the right of action of plaintiff duced to show that certain matters, as to is not yet barred, nor is he debarred by this which the record is silent, were not passed proceeding. For the reasons aforesaid, the on in a judgment of allowance in a probate decree is affirmed. All concur. court. Sweet v. Maupin, 65 Mo, 65; Id., 47 Mo. 323. Like rulings have frequently been made as to judgments of circuit courts. Bell v. Hoaghland, 15 Mo. 360; Clemens v.

CLINKINGBEARD v. CITY OF ST. JOMurphy, 40 Mo. 121; Wright v. Salisbury,

SEPH. 46 Mo. 26; Wells v. Moore, 49 Mo. 229;

(Supreme Court of Missouri, Division No. 2. Spradling v. Conway, 51 Mo. 51. See, also,

June 12, 1894.) Freem. Judgm. 88 273, 274, and cases cited;

CITIES–CHANGE OF STREET GRADE-DAMAGES. Packet Co. v. Sickles, 24 How. 333; Id., 5

A city is not liable for damages from a Wall. 580. In this case it seems there are

change of grade of a street to improvements matters which were not embraced in the put on the property of an abutting owner after final settlement. If this is true, then, of such grade had been established, but only for course, the matters thus nonincluded, not

damages to the property, irrespective of the

improvements. Davis v. Railway Co. (Mo. having been tried and adjudicated, are still Sup.) 24 S. W. 777, followed. open for trial and adjudication, and as to

Appeal from circuit court, Buchanan counthem the final settlement constitutes no ad

ty; Henry M. Ramey, Judge. judicatory barrier. See authorities last

Action by Maggie S. Clinkingbeard against aforesaid.

the city of St. Joseph. From a judgment for 3. But in this category will not be includ

plaintiff, defendant appeals. Reversed. ed the rents and profits of the land, the widow's dower not having been assigned, and

Huston & Parrish, for appellant. Vinton her quarantine remaining therefore intact

Pike and Willard P. Hall, for respondent. (Gentry v. Gentry [decided at this term) 26 S. W. 1090, and cases cited); and this is SHERWOOD, J. Action against the de true notwithstanding such rents and profits fedant city for damages caused by the grading of a street in front of plaintiff's property, fendant to be notified by publication of the the building on which was erected after the commencement of the action, and that this grade of the street was established by the property had been attached, which was done city. This case falls within the rule an- in the manner prescribed by law. The order nounced in Davis v. Railway Co. (Mo. Sup.) of publication was inserted as required by 24 S. W. 777, in which it was held that liabil- law, the first publication appearing April 23d. ity for damages did not extend to injury for On April 26th, by virtue of the same writ of improvements put on the lot after the grade attachment under which the garnishees had was established, but was confined to damage been summoned, the sheriff levied upon and done to the lot, without reference to such im- attached the interest in 10 shares of stock of provements. Adhering to the rule announced the St. Louis Railroad Company. The rein that case, we reverse the judgment, and turn of the sheriff is the following: "Executremand the cause. All concur.

ed this writ in the city of St. Louis, Mo., on the 26th day of April, 1892, by levying upon and seizing all the right, title, claim, and

interest of Max Volkening, the within-named TUFTS v. VOLKENING.

defendant, of, in, and to ten shares of the (Supreme Court of Missouri, Division No. 2. capital stock of the St. Louis Railroad ComJune 12, 1894.)

pany, the same being part of a larger number ATTACHMENT CORPORATE STOCK OF NONRESI- of shares on the books of said company in the DENT-AFFIDAVIT-PUBLICATION OF NOTICE.

name of Henry Volkening, represented by 1. In attachment against a nonresident, the

certificate No. issued by said railroad court can order the publication of notice to defendant before his property has been seized un

company in the name of Henry Volkening; der the attachment.

and at the same time leaving with R. B. 2. The interest of a person in shares of Jennings, secretary of the said St. Louis Railstock may be attached though the shares stand road Company, a true copy of the writ, with on the books in the name of another.

3. Rev. St. 1889, $ 521, makes the nonresi- my attested certificate thereon indorsed that dence of defendant a ground for the issuance I did levy upon and take such rights and of a writ of attachment; section 526 provides

shares to satisfy this writ. Said defendant that the affiant shall state that he “has good reason to believe, and does believe, in the

cannot be found in the city of St. Louis. St. existence of one of the grounds." Held, that an Louis, Mo., June 4, 1892. Patrick M. Staed, affidavit which alleges that affiant “has good Sheriff, by Louis Holy, Deputy.” On June reason to believe, and does believe, that the

9th, default was taken against defendant, defendant is not a resident of this state," is sufficient.

and on June 21, 1892, defendant still not apError to St. Louis circuit court.

pearing, final judgment was entered "that the Attachment by James W. Tufts against plaintiff recover of said defendant the dam

ages assessed, and his costs and charges hereMax Volkening. There was a judgment for

in, and have execution therefor against the plaintiff, and defendant brings error. Af

property attached herein at the commencefirmed.

ment of this suit." Among the grounds for H. W. Adams and E. W. Banister, for

attachment, and on which the order of publiplaintiff in error. Geo. W. Taussig, for de

cation was made, was the allegation that fendant in error

the affiant “has good reason to believe, and

does believe, that the defendant is not a resiSHERWOOD, J. This cause, reported 51 dent of this state." The judgment being by Mo. App. 7, and transferred to this court by default, no bill of exceptions was preserved, the St. Louis court of appeals, is an action on and the cause went on error to the St. Louis an account for balance due on a "soda foun- court of appeals, to be decided on the record tain.” The suit was begun by attachment proper. There the judgment on circuit was April 11, 1892, and on the same day gar- affirmed. nishment proceedings were instituted, and on 1. The affidavit is unobjectionable in form, the same day properly served on several gar

and is, indeed, in exact compliance with the nishees, to wit, William Schreiber, William statute. Nonresidency is the first ground for Schreiber, executor of Henry Volkening, and attachment prescribed by the statute (Rev. the St. Louis Railroad Company. Said gar- St. 1889, $ 521), and a subsequent section nishees were duly served according to law, (526) declares that the affidavit of the affiand all the requisites were duly complied ant, among other things, shall state "that he with, by the sheriff, to attach in their hands

has good reason to believe, and does believe, the goods, moneys, effects, rights, credits, in the existence of one or more of the causes, benefits, choses in action, and evidences of which according to the provisions of section debt, or so much thereof as would be suffi- 521 of this chapter would entitle the plaintiff cient to satisfy the debt, interest, and costs to sue by attachment." in said suit, and said garnishees were duly 2. The main question, however, which summoned to appear at the June term, begin- caused the transfer of this cause to this ning first Monday of June. On April 22d, court, is whether the circuit court had jurisafter the service of the writs of garnishment, diction to order publication to be made prior an order of publication was applied for, and to the attachment of the property ordered on the same day the court ordered the de to be sold to satisfy the judgment. The ob

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